Introduction
With the ongoing development of occupational therapy as a profession and advances made in practice within the area of mental health and psychiatry, challenges have arisen in terms of ethics, human rights and law in regard to the intervention, care and general interaction with persons with mental illnesses. One such challenge is the acknowledgement of the multiplicity of vulnerabilities to which the individual may be exposed (London 2008). This is closely linked to the many environmental and especially social factors, which may put individuals and communities at further risk. Whilst undoubtedly impacting on occupational performance, it is possible that these factors may contribute to the development of mental distress or illness or a mentally ill person may possibly relapse.
Persons diagnosed with or identified as having special mental health care needs impact on the functioning of their particular households in which they live and also on the community in general. A major issue is that of poverty, a constant reality in developing countries. A study undertaken by Eidelman et al. (2010) found that female mental health care service users involved in the study experienced their illness as secondary to their often dire socioeconomic position, their basic survival needs and the problem of dealing with stigma. This further highlights the critical importance of addressing the human and patient rights of these persons. Stigma of mental illness is regrettably still painfully evident despite constitutional or other legal requirements or even international treaties which oblige everyone to respect the rights of others and especially the right to dignity, respect and not to be discriminated against. Poverty, violence, disorders such as HIV/AIDS and limited resources to provide mental health care services create unique ethical dilemmas (Duncan 1999) making effective service delivery challenging. Occupational therapists often need creative and collaborative efforts to succeed. van der Reyden (2010, p. 27) states that ‘Changes in clinical reality calls for clinically sound decision-making when faced with ethical problems, creating a need for both independence and inter-dependence in practice’.
A strong human rights culture and legislation which addresses mental health care with compassion, which provides for equitable and effective service provision together with international codes for practitioners, goes a long way towards mapping out the framework for the service to be rendered and with which the requirements should be complied. South African legislation stipulates requirements for the care, treatment, rehabilitation and full community integration of each mental health care service user.
In order to address ethical and human rights dilemmas, it is necessary to situate mental health and psychiatry within an ethical, legislative and human rights context, taking cognisance of the nature and impact of mental illness on an individual and at a family and community level, within the broader framework of service provision and environmental factors. The significance of the practitioner–patient/client relationship, particularly in the field of psychiatry, should never be underestimated as it is pivotal to all intervention (Pellegrino 1996).
This chapter therefore firstly considers some general provisions and then briefly reviews relevant human and patient rights, followed by a brief discussion of ethics as applicable to this field of practice with a review of relevant legislation, policy and codes. Consideration is given to factors/events/situations and practices which may lead to ethical and human rights dilemmas; the chapter further identifies and attempts to provide some guidelines for addressing common dilemmas from the perspective of the patient/client, service providers, practitioners and the family/community.
Before addressing any specifics, it is necessary to mention some general issues of importance to practitioners.
Ethical professional behaviour and standing
The fundamentals of professional behaviour and the need for indubitable professional standing are learnt and internalised through training and are ongoing throughout life. The universally accepted principles of considering the needs of the patient/client above all else (beneficence) and doing no harm (non-maleficence) underpin all conduct and practitioner–patient/client relationships.
A sound understanding of and compliance with the constitution, legislation and rules as relevant for practice within the country in which the practitioner has trained and/or is practising, together with unquestionable integrity and commitment to human and patient rights form the basis for professional ethical practice is needed.
It further implies the obligation to carry out the professional ‘acts’ of occupational therapy according to the scopes of the profession and practice as dictated by the registering/licensing body of that country and in keeping with the provisions of the World Federation of Occupational Therapists. Because the scope dictates how an occupational therapist is trained, it follows that an occupational therapist may only, for example, use techniques of assessment or other intervention for which he/she is trained and which is acknowledged as part of the scope of practice of the profession of occupational therapy.
Maintaining clinical independence and refraining from unprofessional practices are further non-negotiable requirements; the latter, if contravened, may lead to disciplinary action being taken against the practitioner.
Practitioners should behave in a manner which enhances the standing of the profession of occupational therapy locally, nationally and internationally. Examples include showing respect and interacting in a professional manner with other professionals and workers, showing respect and empathy for and understanding of the patient/client/family and community and communicating in a manner which is appropriate for the patient/client. It also implies that the practitioner should be truthful and honest in all dealings with colleagues and clients, and particularly in all recording and reporting, demonstrating unquestionable integrity at all times and developing and maintaining best standards of practice. All human/patient rights declarations or codes require the practitioner to consider patients/clients equally, as persons of value, and treat them equitably (fairly). This is the baseline for distributive justice, which means that there must be a fair allocation of resources according to need (Beauchamp & Childress 2009).
An occupational therapist may not use unnecessary or inappropriate intervention, especially for financial or personal gain. Over-servicing and acceptance of financial or other rewards are commensurate with actual intervention are serious offences. Under-servicing is even worse. This is where an occupational therapist is paid to deliver services and fails to do so and/or where the occupational therapist may expect the occupational therapy technician/assistant/student to deliver the service while she/he sits and drinks coffee and does private work on the computer.
Mental health within a human and patient rights framework
Mental health care needs to be firstly viewed within a framework of human and patient rights; the global movement towards the recognition and upholding of human rights places these rights at the core of any service provision. The United Nations Declaration of Human Rights (1948) as well as the African Charter of Human and People’s Rights (1981) form the cornerstones of the South African Constitution Act 108 of 1996 and numerous international declarations and treaties. This acknowledgement of and respect for these rights is integral to health care practice and reflects the universal ethical principles such as beneficence, respect for autonomy, non-maleficence and justice as defined by Beauchamp and Childress (1994). The ethical principles, codes and rules oblige the occupational therapist to facilitate awareness and ensure understanding of the implications of these rights and concomitant responsibilities, both for the client/patient and the practitioner. Occupational therapists need to actively engage with these rights and take cognisance of the provisions of the different human rights instruments.
Prominent human rights are those of right to life, liberty and security of person. Underlying all these provisions is respect for the autonomy of the individual and abhorrence of discrimination on whatever grounds. In health care, this heralds a significant change from the benevolent paternalistic approach evident in the medical model (adopted in the past by health care practitioners) and even more so within the field of mental health. The Bill of Rights Sections as found in the Constitution of South Africa Act 108 of 1996 and the Patients Rights Charter (South African Department of Health 2002) as endorsed by the provisions of the National Health Act 61 of 2003 and formalised through the World Medical Association Declaration on the Rights of the Patient (2005), unequivocally provide for rights such as:
- Equality (non-discrimination)
- Access to good quality health care
- Dignity and respect for privacy and confidentiality
- Freedom of choice
- Bodily and psychological integrity which translates into the right to be consulted about, to give informed consent and actively participate in all aspects of intervention
- Access to information about health status and/or intervention in an understandable format/level and language of choice
- The right to refusal of treatment at any time
In the case of a mental health care service user who has been admitted to a facility as a certified case/an involuntary admission or equivalent, depending on national legislation, this right of refusal no longer applies, and the patient is obliged to take medication and comply with other care, treatment and rehabilitation prescriptions but must never be exploited or abused.
The patient/client has many rights; these rights however carry with them certain responsibilities such as ensuring a healthy lifestyle, providing accurate information to carers and practitioners, cooperating with reasonable requests and not abusing health care services.
The ethical perspective
Professional integrity and respect for the rights of others and particularly those of the patient/client go hand in hand with a sound understanding of and internalisation of ethical principles, rules and codes of professional conduct.
Ethics provides a structure or set of standards that prescribe or prohibit certain behaviours of members of a particular group and/or health care practitioners. These are prescribed by the regulating/licensing body:
It describes the ‘best we can be’, the highest level of service or behaviour aspired to and the ideal self. Primarily, it concerns the occupational therapist’s responsibility, duty and obligation to recipients of our services and is underpinned by professional integrity and clinical independence. It also describes day-to-day behaviour towards the service user, other colleagues, referral agencies, employers, training centres and the community.
Ethical theory and ethical codes together with legislation equip the occupational therapist to recognise and deal with ethical dilemmas effectively – these include but are not exclusive to everyday decisions such as who and how to assess/treat; obtaining informed consent; maintaining confidentiality; what to exclude/include in reports; termination of intervention; allocation of resources (distributive justice); omissions; disclosures; and how to deal with particular incidents, situations and persons.
The obligations and responsibilities of health care practitioners are contained in numerous ethical codes and international treaties/declarations as prescribed by world health bodies, regulating/licensing bodies for occupational therapists within each country as well as profession-specific codes of ethics, such as the World Federation of Occupational Therapists (2005), and public oaths taken on graduation. The American Psychiatric Association (2013, pp. 1–10) has, due to the critical importance of the highly personal relationship of trust which needs to exist between practitioner and patient also to the sensitivity of information shared by psychiatric patients, published a code of ethics with annotations to accommodate the idiosyncratic nature of psychiatric conditions and service provision. Qualified practitioners are commonly required to undertake continuing professional development, which may specify a component in ethics, in order to retain registration with their registration body.
It is a matter of concern that although excellent guidelines and codes are easily accessible and most practice complies with professional ethical standards, the authors have found that practitioners often do not to have the necessary knowledge of these documents and find it difficult to articulate ethical issues and justify practice decisions.
Practitioners need to deal with ethical dilemmas virtually on a daily basis – the ability to recognise, analyse and apply moral ethical reasoning is therefore essential. A five-step process is proposed (WMA 2006) which, in summary, recommends firstly formulating the problem, followed by gathering relevant information and thereafter consulting authoritative resources and general practice. This is followed by formulating and considering different options/solutions and finally determining the best possible way to address the issue. This final analysis includes weighing up possible consequences; the values, duties, rights, legislation and professional morality involved; considering the patient/client opinion; applying the golden rule of treating patients/clients as the occupational therapist would like to be treated; and finally sharing the proposed solution and acting upon it with sensitivity and regard for others involved.
The legal perspective
Numerous pieces of legislation have bearing on health care practice (McQuoid-Mason in Dhai & McQuoid-Mason 2011). It is essential that occupational therapists become familiar with relevant legislation (van der Reyden 2010) as they need to practise within progressively more structured legal frameworks, which frequently encompass what were previously ethical obligations and duties. The fundamental principles underscoring declarations, treaties, legislation and codes worldwide are those of respect for life of person, security, freedom of choice, respect for autonomy, non-discrimination, equity and community integration.
In South Africa, the most pertinent legislation for practitioners in the psychosocial field of practice, apart from the Bill of Rights is the Mental Health Care Act 17 of 2002. Other acts of relevance are the Prevention and Treatment of Drug Dependency Act 20 of 1992, the Prevention of and Treatment for Substance Abuse Act 70 of 2008 and the Criminal Procedure Act 51 of 1977. These have generally relevant issues which will be addressed briefly.
Although an extensive component of practice with children may be classified as falling within the broad domain of mental health/psychiatry, the space allocation of this chapter does not allow for any further discussion, except to mention the many treaties and declarations which exist for the protection and care of children. Practitioners are advised to access the World Medical Association’s Declaration on rights of the child to health care (1998) and the South African Children’s Act 38 of 2005 which contains progressive and holistic provisions.
Occupational therapists who offer vocational rehabilitation services to clients with mental health care problems, additionally, need to be fully aware of the provisions of labour legislation and disability management in the workplace. In South Africa, these are contained in the Labour Relations Act of 66 of 1955, the Employment Equity Act 44 of 1998 and related codes of good practice with provisions similar to those of many other countries.
The Mental Health Care Act 17 of 2002 in South Africa (hereafter the Mental Health Care Act) has significant implications for occupational therapy practice. Only aspects which are useful as guidelines for best practice within an international perspective will be discussed.
The act represents a move away from the custodial care approach, with incarceration for persons with severe mental illness as reflected in prior legislation, to a human rights-based, rehabilitative approach which affords persons with mental illness and their carers the right to respect, human dignity and privacy. It also recognises the right to develop to their full human capacity and in so doing acknowledges the possibility of enabling improvement and recovery. The act furthermore represents a definite move away from the paternalistic, discriminatory approach evident in the past, which seemed to ‘diminish’ the rights of persons with mental illness to little more than that of protection and care of themselves and others.
The act is in keeping with the Bill of Rights and with two landmark documents adopted by the United Nations, which both call for a change in the mindset about people with disabilities and the provision of opportunities for such persons. The first is the ‘Standard Rules on the Equalisation of Opportunities for Persons with Disabilities’ (United Nations 1993) which provides a set of norms for government, non-governmental organisations, the academic community and civil society. These norms are directed at the enablement of full community participation and equalisation of opportunity of persons with disabilities. The second document, the ‘United Nations World Programme of Action Concerning Disabled Persons’ (1982), likewise calls for a change in the attitude of health care providers and for affording opportunities for persons with disabilities. This document was followed up with a United Nations Declaration (1991) which provides for minimum standards for the protection of the fundamental freedom and the legal rights of persons with mental illness and for the improvement of mental health care.
The Mental Health Care Act (SA 2002) provides for the care, treatment and rehabilitation of persons who are mentally ill; admission procedures for such persons to health establishments; the establishment, powers and functioning of review boards; and the care and administration of the property of mentally ill persons. Of importance to occupational therapists is that the South African Act specifies that the delivery of these services be from both hospitals and rehabilitation centres and that such services be provided at all levels of health care provision, namely, at primary (community), secondary and tertiary levels. Such services may furthermore be offered by the state, establishments under the auspices of the state, non-governmental organisations, volunteer or consumer groups, profit-making organisations and individuals registered with an appropriate regulatory body. Such facilities may include medical care, residential accommodation, day-care centres, counselling support/therapeutic groups, psychotherapy and occupational therapy programmes and/or any service that will assist with such a person’s recovery or the attainment of optimal functioning. It stipulates the necessity of community-level service development. The focus on community integration and maximum participation by the community is clear in the act. It is in keeping with emerging public health ethics (Kass 2001). This provides for close and ongoing interaction and negotiation with the community and places the emphasis on the family and community needs rather than predominantly on the needs of the individual, as is the case with bioethics.
The South African Act includes care providers or custodians as users of mental health care services and as such indicates the significance of their participation in the planning of care and treatment and rehabilitation. Such persons will need to be provided with information on conditions relating to care. Mental health care service users are entitled to legal and other representation and a formal discharge report, which should include occupational therapy input.
Health care providers need to inform a service user in an approved manner of his/her rights before commencing any intervention, unless committed as an involuntary admission. The occupational therapist should take special note of this provision. This is not easy, as the more acutely or severely mentally ill individual may not be able to fully comprehend such information and the mental state of such an individual may also not be constant and may alternate between lucidity and disorientation. Strict provision for consent and treatment for psychosurgery, electroconvulsive treatment, operations for illness other than mental illness, mechanical constraints and seclusion are outlined in the regulations. This has direct implications for occupational therapists, as informed consent should be viewed as an ongoing and incremental process and an integral part of all interventions.
Issues such as the use of restraints and seclusion that have in the past been veiled in secrecy are addressed in the act. The occupational therapist has a responsibility to prevent inappropriate or excessive use of restraints and seclusion and is obliged to report such cases. Recommendations may be made for alternative management strategies such as adapting the environment and decreasing triggers which may help to contain excessive behaviours, whilst the provision of alternative activities which facilitate engagement and channelisation of energy should be considered as alternative options. Although the provisions made for care within community settings are welcomed, they place a greater burden of care onto family and community members, which also then needs to be addressed by the practitioner. Currently ongoing and substantial community rehabilitation and other support services provided in developing countries such as Africa are severely limited (World Psychiatry 2002), often despite the availability of primary health care clinics, where medication and limited counselling are provided.
Forensic Psychiatry and Occupational Therapy
Sensory Integration in Mental Health
