11.2 What needs to happen

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11.2.1 Issues

International developments and changing approaches to mental health care

Over the last 20 years, the emphasis in mental health care has moved to a recovery and social wellbeing model of health, with more emphasis on human rights. Concepts of individual autonomy and informed consent to treatment are central tenets in contemporary health ethics. They are also emphasised in the New Zealand Bill of Rights Act 1990 and the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996. Decisions should be made by a person only once they have received all the necessary information, and people are generally presumed to be competent to consent unless reasonable grounds exist for believing they lack capacity.

The treatment philosophy of recovery also emphasises the importance of services involving consumers as equal partners in treatment and offering the greatest possible independence and choice. Over time, the recovery model has been seen, not only as good practice, but as an explicit governmental goal of mental health services in New Zealand. For example, the recovery approach is set out in national strategies and plans such as the Mental Health and Addiction Service Development Plan 2012–2017.²¹⁶

Another shift is the growing human rights focus of international instruments, in particular the United Nations Convention on the Rights of Persons with Disabilities, which New Zealand ratified in 2008.²¹⁷ The purpose of this convention is to promote and protect equal human rights for disabled people. While interpretation of the convention is not yet settled,²¹⁸ comments and further guidance from the United Nations Committee on the Rights of Persons with Disabilities indicates that the convention was intended to apply to mental illness.

New Zealand’s mental health statutes have not kept pace with these shifts. Our legislative framework is still largely based on a ‘substituted decision-making’ model and does not provide a ‘supported decision-making framework’.²¹⁹ Our framework fails to fully recognise the rights of people with mental health and addiction challenges and that the ‘rights, will and preferences’²²⁰ of the person lacking capacity should be ascertained or respected. Notably, the legal tests for meeting the criteria for compulsory treatment under different statutes vary significantly – in part, because New Zealand legislation does not have a consistent definition of ‘mental capacity’ (or ‘incapacity’). Nor is capacity always relevant when exercising statutory powers. Safeguards are insufficient for people detained or treated without informed consent, which is inconsistent with international human rights developments and the recovery approach to treatment.

New Zealand’s Mental Health Act is outdated and inadequate

While we acknowledge the considerable breadth and complexity of issues spanning the legislative framework as a whole, the Mental Health Act is particularly problematic and outdated in its approach. This Act’s provisions do not adequately reflect the international principles and standards that New Zealand has signed up to and are inconsistent with newer domestic legislation, such as the Substance Addiction Act.

The Mental Health Act was enacted over 20 years ago and has never been comprehensively reviewed. The definition of ‘mental disorder’ in the Act governs entry into and exit from compulsory assessment and treatment. It is a legal definition, rather than a medical concept. The definition of ‘mental disorder’ has two aspects. First, a person must be assessed as having an ‘abnormal state of mind’. Second, this abnormal state of mind must be of such a degree that it poses a serious danger to the health or safety of that person or others or it seriously diminishes the capacity of that person to take care of themselves. A person may be certified by a doctor for compulsory assessment when there are ‘reasonable grounds to believe’ they are mentally disordered. A judge may make a compulsory treatment order for a person who is mentally disordered, and a person may remain under compulsory treatment for as long as they meet this test.

Significantly, the Mental Health Act does not require an assessment of mental capacity. This means that under the Act, a ‘competent’ person’s wishes can be overridden, based on an assessment of their ‘risk’ or ‘dangerousness’, even if they have the capacity to make their own decisions. This can be contrasted with the criteria for compulsory treatment under the Substance Addiction Act, which places greater weight on the rights and interests of patients. Unlike the Mental Health Act, the Substance Addiction Act requires a finding of ‘incapacity’ before the Act is triggered. Incapacity follows from an assessment that the person is unable to make a legally effective decision to consent to or refuse treatment.²²¹

The concept of ‘consent’, as referred to in the Mental Health Act, is also not the same as ‘informed consent’. Informed consent should be free of coercion. However, under a compulsory treatment order, ‘consent’ to treatment necessarily implies a degree of coercion. However, a proposed patient or patient under the Mental Health Act may not refuse consent to any form of compulsory treatment for mental disorder or to sedation where a clinician believes it is urgently required.²²²

The current situation raises ethical issues and is inconsistent with the rights applicable to general health care in New Zealand, including the right to refuse medical treatment. The denial of the right to refuse medication under the Mental Health Act is particularly problematic when significant side-effects (such as significantly premature mortality rates) are known and the patient is competent to make treatment decisions and wants to avoid these effects. Over-reliance on medical treatment is also contrary to section 66 of the Mental Health Act, which expressly provides for the right to both medical treatment and ‘other health care appropriate to [the patient’s] condition’.

In addition, we consider the checks and balances under the Mental Health Act to be insufficient. For example, the Act permits a person to be indefinitely held under the Act.²²³ It also permits the use of seclusion (at the discretion of the clinician), as well as the use of ‘reasonable force’ under specified circumstances when detaining, taking and retaking a patient for treatment. Again, this can be contrasted with the Substance Addiction Act that specifies that compulsion should be used only as a ‘last resort’ (and that those exercising powers should use the least coercive means and take into account the views of patients and their families and whānau), provides time limits on compulsory treatment (with no ability to make indefinite orders), prohibits seclusion and puts a greater emphasis on rehabilitation.

The disparity of approach between the Mental Health Act and the Substance Addiction Act has no justification in policy.

As with many of the things we heard through the Inquiry process, the issues around the Mental Health Act have long been recognised and agreement is widespread that change is needed. In 2014, the United Nations Committee on the Rights of Persons with Disabilities highlighted the Mental Health Act’s inconsistency with the principles of the Convention on the Rights of Persons with Disabilities, in particular its lack of human rights principles. The Committee recommended that the Act be amended to comply with the Convention. In response, the Ministry of Health began work to better understand how New Zealand’s mental health legislation relates to our human rights law and obligations under international conventions. A discussion document released in 2016, and followed by a thematic analysis of submissions, outlined many of the same issues.²²⁴

The Mental Health Commissioner, in his 2018 monitoring and advocacy report, endorsed a review of the Mental Health Act and recommended that the Ministry of Health advise on the changes required to that Act to align it with current expectations about human rights and support decision-making and best practice in the provision of therapeutic health ²²⁵

Risk aversion and the Mental Health Act

Clinicians working under the Mental Health Act, particularly psychiatrists and mental health nurses whose decisions have been subject to criticism from DHB reviews, coroners’ inquests and Health and Disability Commissioner investigations, have unsurprisingly developed a culture of risk aversion and defensive practice. This is a problem that extends beyond interpretation and application of the Mental Health Act, but many highly publicised cases involve decisions made under the Act. It is based on the flawed premise that risk prediction is an exact science. Instead of focusing on the patient’s best interests, too often clinicians attempt to ‘manage risk’. The results are not always good for patients, clinicians or, ultimately, the community.

11.2.2 What needs to happen

About 10,000 people a year are subject to compulsory assessment and treatment under the Mental Health Act.²²⁶ The use of compulsion, seclusion and restraint needs to be reduced, especially for Māori and Pacific peoples, for whom the rate of use is disproportionately high.²²⁷ The numbers of compulsory treatment orders vary across the country. The fact that some regions show relatively low rates suggests scope exists to reduce the overall use of compulsory treatment.²²⁸ We commend the work of the Health Quality and Safety Commission to end seclusion by 2020.²²⁹ We are pleased that all DHBs are participating in the national collaborative Towards Zero Seclusion in 2020 that includes training in techniques and practice such as SPEC (Safe Practice Effective Communication). This quality improvement work is governed by a leadership group that includes consumers.

While legislative change cannot be the sole driver of changes in practice, if government commitment to recovery and people-centred services is to be meaningful, it must be supported by our mental health laws. Law reform should enshrine a framework that enhances and protects people’s rights to participate in and make decisions about their health and life and respects their autonomy.

We note the need, in the longer term, for review and reconciliation of all mental health and addiction (and related) legislation for consistency and compliance with the United Nations conventions. This could be through the adoption of a universal regulatory approach to capacity (for example, England and Wales’ Mental Capacity Act 2005 or Ontario’s Health Care Consent Act 1996) or a single unifying statute (for example, India’s Mental Healthcare Act 2017).

As an initial step towards legislative reform, we recommend the immediate repeal and replacement of the Mental Health Act. Any new Act needs to reflect a human rights–based approach, align with the recovery and social wellbeing model of mental health, and support the role of families and whānau and significant others, while retaining and building on the strengths of existing legislation. We commend the Substance Addiction Act’s purpose of ‘enhancing mana’ and ‘restoring capacity’ and its requirement that those exercising powers under the Mental Health Act recognise the importance and significance to the person of their ties with their family and whānau, hapū, Iwi or other family group and the need for mandatory consultation with them.

As noted, legislative change on its own will not drive systemic change. New Zealand’s legislative framework for mental health and addiction can work only in a well-functioning system that recognises human rights and supports recovery, participation, capacity-building, prevention and early intervention, thereby reducing the need to invoke powers of coercion and enforced treatment. Legislative change also needs to be supported by clear guidance and clinical best practice that promotes supported decision-making and provides measures to minimise compulsory or coercive treatment.

We also think New Zealand needs a national level discussion, carefully crafted, to reconsider beliefs, evidence and attitudes about mental health and risk. Media leaders, mental health advocacy groups and sector leaders, people with lived experience, families and whānau, professional colleges, DHB chief executive officers, coroners, the Health and Disability Commissioner, New Zealand Police and the Health Quality and Safety Commission should all be engaged in the debate. The aim should be to increase understanding about mental health and risk, confirm the proper role of review processes, discuss responsible reporting of sad and difficult cases, and support good clinical decision-making in the interests of patients and the community. A new Mental Health and Wellbeing Commission could play a role in facilitating the debate.

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