Ministry of Health Review of the Mental Health Act

Dr David Chaplow - director of mental health, Ministry of Health, provided some context for the review of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MH Act). Historical case law that has shaped the interpretation of the MH Act was presented. The process for review of the MH Act was described, highlighting the length of time this takes.

There are a number of points that will be considered when reviewing the MH Act, and David listed some. However, the Ministry of Health is keen to hear from the sector and wished to use this opportunity to understand some of the issues from a DAO perspective. Dr Chaplow's presentation has been made available below.

The Mental Health (Compulsory Assessment and Treatment) Act 1992, 17 years on, the need for amendment

The philosophy behind the Act

The 1992 MH Act (‘The Act') came in after a gestation of 10-years. It was radical in that it provided a clear and testable definition of mental disorder, it moved the epicentre of mental health from the hospitals to the community and it provided a ‘human rights' underpinning for ‘patients' who became the sole focus of the Act. Various patient rights were positively protected under the Act, and a robust monitoring framework supported this protection. In many ways the Act was ‘before its time' because of these changes.

The old Act (1969) had been ‘doctor and hospital'-focused. Essentially mental disorder (then defined in terms of ‘mental illness, ‘mental infirmity' and ‘mental deficiency' with a threshold of ‘danger to self or to others') was what doctors said it was. I personally don't think that this definition was abused but it gave little ability for others, particularly judges, to test it. The old act also lacked ‘rights and protection' for patients, many of whom stayed under the act for far longer than necessary

Some people question the need for an act at all. Not all opposition has come from the ‘anti-psychiatry' brigade. Serious suggestions have been made that ‘custody orders' (similar to those made under the PPPR Act) may obviate the need for medical definitions and threshold criteria for compulsory treatment. Many (who do belong to the ‘anti-psychiatry' brigade) see the act as an intrusion and violation of human rights and in some cases as an instrument that can heighten or create an imbalance of power between doctors especially, and vulnerable, misunderstood people.

Most people in civilized societies recognize that civil legislation is required to assist those, who, because of mental illness and its sequelae, are vulnerable, may not always be able to make good decisions in their own best interests and may not be able to adequately care for themselves. In this manner civil legislation represents the ‘benign paternalism' of the state.

The need for a legal framework

Since 1992 society has become far more ‘legalistic'. The ordinary person is more conscious of his/her rights. More people have become medically literate and have greater expectation and less tolerance for medical mishap.

Since 1992 significant legislation and statutory bodies have come into being:

The NZ Bill of Rights Act 1990: this Act outlines fundamental rights that all citizens should enjoy. The MH Act prevails when the two Acts seem to clash.

The Human Rights Act 1993: this Act, among other protections, makes it unlawful to discriminate on 13 defined grounds. Application of this Act to the mentally ill (e.g. as in unemployment) is difficult.

The Privacy Act 1993: this Act is designed to ensure that information about individuals is handled with an expectation of privacy. 12-principles are given and a number of exclusions. These govern the collection, storage, use and disclosure of personal information. The Health Information Privacy Code is particularly pertinent to the practice of mental health services, and it allows for complaints about alleged breaches of the code to be investigated by the Privacy Commissioner. Like the HRAct, the Privacy Act and code are subordinate to the MH Act.

The Mental Health Commission and Act 1998: came into being as a result of a recommendation made by a committee chaired by Judge Mason. In 1997, the committee identified that the mental health sector suffered a lack of national leadership, inadequate resourcing, and chronic under-funding. Thus the Commission was born. It provides independent leadership in specific areas, notably reducing stigma, service provision and sustainable funding.

The Health and Disability Commission 1994: this important legislation gave rise to a ‘health complaints ombudsman body' that investigates complaints related to alleged breaches of the Code of Health and Disability Services Consumers' Rights, thereby augmenting the provisions set out in the MH Act.

The annotation of just these few statutes and regulatory bodies supports the fact that our practice environment is complex and aimed at transparency, testability and accountability. Any new amendments need to map to and align with all relevant legislation.

Criticisms and why amendments are necessary

The initial criticism of the 1992 Act was that it is person and paper intensive, more so than it needs to be. It was said that valuable clinician resources would be diverted from clinical duties to administrative duties. In fact this is what has happened. 20-years ago the average clinician spent in excess of 60 percent of their time with patients. Today it is under 50 percent. Not all of this change can be sheeted home to the Act, because administration compliance is wider than the Act.

Since 1992 there has been celebrated decisions impacting on the functioning of the Act: some examples include

The ‘Ellis' case (about 1995) that helped determine the function of S10 and the important role that the DAO plays

‘Re H' (about 2001): a High Court decision that clarified the definition of ‘mental disorder', effectively acknowledging that ‘mental disorder' is a wider concept than ‘mental illness'

A High Court decision (about 2006) concerning S9(2)(d) and emphasizing that S16 is in effect a ‘habeas corpus' provision and that provisions lawfully enacted must be followed.

A number of important trends are also developing in overseas jurisdictions and their mental health law, such as:

1. removing decisions from the political arena to the judicial or quazi-judicial arena. Most states and countries refer special patient applications for leave and status changes to tribunals or courts
2. a move to ‘competency-based' legislation - this means that a person would only be committed under MH legislation if they lacked ‘competency' i.e. were not able to make sound decisions in their own interests due to mental illness. The problems associated with such a move are profound. Certain jurisdictions (Canada) have been content to have people removed from society because they pose a ‘danger' because of mental illness, meanwhile prohibiting their compulsory treatment because they are deemed competent to decide whether to accept or refuse treatment
3. moving away from ‘risk' or ‘danger'-based definitions of mental disorder.

Suggested areas for change

We can see from the discussion that amending an Act is far from simple. It seems to me that the under pinning of such legislation should be to support ‘good practice', protect vulnerable individuals and provide a transparent and publicly accountable means of scrutiny and support.

We need to remind ourselves that individuals have suffered harm in the past because of clinical hegemony, a failure to challenge covet and questionable clinical decisions and practices, and a lack of advocacy.

The current Act is quite solid in these areas but even so, it needs amending. There are, in my opinion some big items and a number of ‘rats and mice'.

Big items for change or consideration:

1. The definition of mental disorder. I think that the current definition has good utility and we have had 17-years to understand it. It may be time though to discuss whether or not we still need to use the word ‘risk' or ‘danger'.
2. The need to remove decision-making from the political arena to a judicial or quasi-judicial arena, at least partially if not fully. This is largely uncontested. It will mean that Special Patients applications would be referred to a court or tribunal for ‘long-leave' or change in status.
3. Competency provisions: as indicated this is a complex issue and the proper extent and limitations of competency will require considerable thought.

Lesser but nevertheless important items for amendment:

1. S 9(2)(d): needs amending so that it is in line with the amendment to section 7A
2. the desirability or otherwise of S29 community orders including a residential direction
3. how to strengthen the provisions that seek to enhance family inclusiveness
4. reducing the administrative demand on clinicians
5. whether the indeterminate period of committal (S34(4)) should be retained
6. possible amendment to the ECT provisions, in particular exploring the issues raised by the Select Committee in their report on a petition that sought stricter controls on ECT
7. clarifying the lawful use of seclusion.

There are other areas that will need consideration, and we welcome any suggestions from stakeholders. Any changes to the Act will, of course, involve a process of consultation with all stakeholders. We also need to note that the Minister is yet to formally approve a review of the Act. However we anticipate that this will be forthcoming.

In summary then, our aim is for a full review of the Act - a timely project given that it has been in force for almost 17 years now and there have been many significant developments in that time. Additionally, as mentioned, there are several administrative issues that need looking at. The Act is a complex piece of legislation, and part of a complex matrix of other pieces of legislation and statutory responsibilities. The challenge will be to work through the competing interests and arrive at a place where all relevant interests have been considered and to find how best to balance these interests, while keeping the patient and their interests central to any changes.

Page last updated: 28 May 2009