Compulsory mental health treatment and law

The Mental Health Foundation of New Zealand advocates for the new mental health law and accompanying system, service and practice changes to absolutely minimise compulsory treatment in our mental health system over the course of ten years, with immediate action to minimise its use significantly.

A move to a less coercive system must be facilitated by service and practice changes across the mental health and addiction system to ensure tāngata whaiora, whānau and health workers are appropriately supported and kept safe.

These changes should be led and informed by those with lived and living experience of the Mental Health Act, including tāngata whaiora Māori.

The MHF’s submission to the Law Commission’s Review on Adult Decision-Making Capacity Law focusses on decision-making in the mental health system – specifically, the experiences of those whose right to make decisions about their personal care and treatment is, or has been, overridden under the Mental Health (Compulsory Assessment and Treatment) Act (the Mental Health Act).

 The MHF recommends Aotearoa New Zealand’s laws embed supported decision-making within our mental health system by ensuring all services and supports (including whānau support) enable tāngata whaiora to make their own decisions about their mental health care, treatment and recovery. This means all types of support, including the most intensive, works to reach decisions which are based on the will and preferences of the persons concerned. These supports should allow for and promote collective decision-making approaches informed by tikanga Māori and te ao Māori. 

 The submission expands on this position and also responds to other questions asked by the Law Commission including how advance directives should work in practice, how tikanga Māori should be considered in our decision-making laws, and how decision-making supporters should be utilised. 

The MHF’s submission to the Law Commission’s Review on Adult Decision-Making Capacity Law focusses on decision-making in the mental health system – specifically, the experiences of those whose right to make decisions about their personal care and treatment is, or has been, overridden under the Mental Health (Compulsory Assessment and Treatment) Act (the Mental Health Act).

 The MHF recommends Aotearoa New Zealand’s laws embed supported decision-making within our mental health system by ensuring all services and supports (including whānau support) enable tāngata whaiora to make their own decisions about their mental health care, treatment and recovery. This means all types of support, including the most intensive, works to reach decisions which are based on the will and preferences of the persons concerned. These supports should allow for and promote collective decision-making approaches informed by tikanga Māori and te ao Māori. 

The submission expands on this position and also responds to other questions asked by the Law Commission including how advance directives should work in practice, how tikanga Māori should be considered in our decision-making laws, and how decision-making supporters should be utilised. 

In our submission to the Health Committee we make 68 recommendations to amend the Bill.

Overall, the MHF supports the Mental Health Bill, but it does not go as far as we had hoped. We support many of the new provisions, particularly those related to supporting and assisting people potentially subject to the legislation to understand and participate in decisions, express their decisions, have their rights upheld, and have their whānau and loved ones involved in their care.

That said, the MHF is disappointed the Bill is not as transformative as initially envisaged in He Ara Oranga, the 2018 report of the Government Inquiry into Mental Health and Addiction. After over 30 years without review, many saw this repeal and replacement process as a once-in-a-generation opportunity to reimagine our response to people experiencing significant mental distress.

The Mental Health Act outlines how someone is legally assessed for and receives compulsory mental health treatment. This Bill makes changes to indefinite treatment order, the transport of special patients, and the use of audio-visual technology for whānau/family consultation and for mental health assessments and examinations. This is a joint submission from the Mental Health Foundation of NZ and the Like Minds Like Mine Nōku te Ao programme.

The MHF does not support the use of restraint in mental health services, and we advocate for:

• In the short term, additional scrutiny and improved national reporting to stop the inequitable use of restraint practices on certain population groups, particularly tāngata whaiora Māori.
• In the long term, the absolute minimisation of restraint practices within ten years of the forthcoming new mental health legislation coming into force. 

The Mental Health Foundation (MHF) advocates for the end of solitary confinement (seclusion) in mental health services across Aotearoa New Zealand.

This prohibition needs to be supported by adequate resourcing of services and changes to delivery models and practice approaches, building on the decade- long Zero Seclusion project and success of services that have eliminated solitary confinement at times.

Ending solitary confinement can result in better outcomes for tāngata whaiora, whānau and health workers.

This paper sets out the Mental Health Foundation’s (MHF) position on support decision-making as it relates to the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Mental Health Act).

The MHF recommends:

• All services and supports should enable tāngata whaiora to make their own decisions about their mental health care, treatment and recovery.
• Aotearoa New Zealand’s legal frameworks should embed support decision-making within our mental health system.
• Legal reform must be supported by clear national policy and adequate resourcing and guidance to support service and practice changes over time. 

The Government accepted the recommendation from He Ara Oranga, the report from the 2018 Mental Health and Addiction Inquiry, to repeal and replace the Mental Health (Compulsory Assessment and Treatment) Act 1992. The development of a new mental health law for Aotearoa is a once in a generation opportunity to reframe our response to mental health, providing a powerful lever to reconstruct our approach to supporting people with severe mental distress based on best practice, human rights and appropriate resourcing.

In our submission to the Ministry of Health we make a number of recommendations, including:

• The complete and immediate end to seclusion practices/solitary confinement under the new law.
• The absolute minimisation of compulsory treatment and restraint, reducing these practices to the barest of minimums by a date no later than ten years from the new legislation passing into law.
• A legal requirement for a plan to implement supported decision-making and the full range of service development and practice changes necessary to enable the absolute minimisation of compulsory treatment and restraint over 10 years.

The Mental Health Foundation sent this letter to the Minister of Health welcoming the recent publication of policy decisions on the reform of the Mental Health (Compulsory Assessment and Treatment) Act 1992.

We are pleased with the purpose of the new legislation to respect human rights, support te ao Māori approaches to recovery, take a holistic approach to mental health and wellbeing, to facilitate a supported decision-making regime and to minimise the use of compulsory treatment orders, seclusion and restraint. 

We will however be watching developments in this space closely, particularly on areas where we believe more transformation is needed including seeking certainty that Aotearoa will reach zero seclusion across the mental health sector, that the legislation will truly be grounded in Te Tiriti o Waitangi, and in the strengthening of advocacy processes, including the role and powers of District Inspectors.