International Journal of Mental Health Nursing (2006) 15, 119–127 doi: 10.1111/j.1447-0349.2006.00411.x © 2006 Australian and New Zealand College of Mental Health Nurses Inc. Feature Article A conversation: Challenging the relevance and wisdom of separate mental health legislation Timothy Wand 1 and Mary Chiarella 2 1 Emergency Department, Royal Prince Alfred Hospital, Camperdown, and 2 Centre for Health Services Management, Faculty of Nursing Midwifery and Health, University of Technology, Sydney, New South Wales, Australia ABSTRACT: This paper explores the dilemmas encountered by mental health nurses when working with mental health legislation. The concerns and considerations of an expert mental health nurse, complemented by the opinion of an expert in health-care and legal issues are presented. It is argued that there is currently a distorted perception with regard to the function and sentiment of mental health legislation, and this paper aims to restore balance in interpreting and working with such law. Viewing mental health legislation primarily as a mechanism for involuntary hospitalization effectively removes any power or recourse given to mental health consumers by the law. Principles of mental health care and legislation are examined as well as the relationship the law has with dangerousness to self or others and mental ill health. A dialogue is established between the two authors to assist the exploration of these legal and clinical issues. The continued relevance of specific mental health legislation is brought into question. It is proposed that the existence of such legislation constitutes discrimination and contributes to stigma associated with mental illness. An alternative legislation for all circumstances where an individual is deemed incompetent is proposed as the most significant step towards mainstreaming of mental health care and an end to discrimination. KEY WORDS: capacity, dangerousness, discrimination and stigma, human rights, mental health legislation. Blackwell Publishing AsiaMelbourne, AustraliaINMInternational Journal of Mental Health Nursing1445-83302006 Blackwell Publishing Asia Pty Ltd? 2006152119127Feature Article CHALLENGING SEPARATE MENTAL HEALTH LEGISLATIONT. WAND AND M. CHIARELLA Correspondence: Timothy Wand, Emergency Department, Royal Prince Alfred Hospital, Missenden Road, Camperdown, NSW 2050, Australia. Email: twand@email.cs.nsw.gov.au Timothy Wand, MHN DASNurs., Grad Dip MHNurs., MNurs. Mary Chiarella, RN, CM, LLB (Hons), PhD (UNSW). Accepted February 2006. INTRODUCTION Tim: In New South Wales (NSW), Australia, a growing number of mental health nurses (MHNs) and allied health professionals are being asked to undertake accred- ited persons training pursuant to the Mental Health Act NSW (1990). Accredited persons are senior mental health practitioners appointed by the Director-General of the Department of Health for the purpose of giving certifi- cates under section 21 or acting under section 27 of the NSW Act. Section 21 is the most frequently used method for hospitalizing a person involuntarily, and this is formal- ized by completing a prescribed form, the schedule 2. The accredited person’s training requires clinicians to attend a specified course and to submit a detailed assign- ment to demonstrate an understanding of mental health legislation. Having recently completed this training, in March 2005 I was sent a letter by the NSW Department of Health that congratulated me on the completion of the accreditation process. The letter also provided some guid- ance on exercising my newly bestowed ‘powers’. I found the use of the word ‘powers’ disconcerting. I thought that it represented an unbalanced view of the intended pur- pose of mental health legislation, and that this view sig- nificantly disadvantages consumers of mental health services, the individuals mental health legislation is designed to protect. I decided to explore the principles that underlie mental health legislation and the contro- versy around dangerousness and mental health. I also put