This chapter explores the legal and ethical factors that inform mental health nursing, from multiple perspectives. The chapter proposes a legal and ethical framework that promotes human connectedness between the practitioner and people with mental health conditions and their families and whānau . The chapter includes theoretical and practical aspects of working within a legal framework, and provides a number of narratives to bring to life what it means to experience compulsory treatment. It concludes by discussing proposed alternatives to compulsory treatment and a potential future legal framework that embraces a person's autonomy and human rights. New Zealand – and each Australian state and territory – has its own mental health legislation. Although there are differences between them, they share the essential features of providing for treatment without consent, criteria of danger to self and others, and certain procedural protections. Throughout this chapter we use the term ‘mental health legislation’ to refer to common aspects of the legislation in different jurisdictions.
A legal and ethical framework for practice
Practitioners encounter many challenges in caring for people with mental health conditions, such as the multifaceted explanations for the origins of mental distress and the requirement to uphold people's well-being and safety though the use of mental health legislation. Such challenges can create moral and ethical dilemmas in practice.
Ethics is described as a moral philosophy. Within nursing practice, ethics is concerned with the decision-making processes in which practitioners engage, based on their reasoning about what is right and wrong (Bennett & Bennett, 2011). According to Beauchamp and Childress (2013), ethical decision-making requires the person to have the motivation and desire to understand what should be done in a given circumstance in order to perform the action required. The subsequent actions are thus based on the moral ideals of the person. Such ethical decision-making in nursing care is informed by the processes of reasoning, justification and argument (Beauchamp & Childress, 2013) in order to make a decision about the appropriate actions to take (Johnstone, 2009).
An ethical framework for nursing practice (Australian Nursing and Midwifery Council, 2008; Nursing Council of New Zealand, 2012) is based on four sound ethical principles: autonomy, beneficence, non-maleficence and justice (Beauchamp & Childress, 2013). Autonomy refers to the respect that is shown by practitioners towards people's decisions and choices.