Transforming Aotearoa’s mental health law

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 the following recommendations:

• 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 development and enactment of a plan to implement supported decision-making and the full range of key service development and practice changes that will enable the absolute minimisation of compulsory treatment and restraint over 10 years. This plan should be co-designed with tāngata whai ora and tāngata whenua.
• The new law must use Te Tiriti o Waitangi as the foundation and directly reference Te Tiriti o Waitangi articles, and to ensure tino rangatiratanga in this respect we recommend a Māori rōpū be tasked with policy and legislative development alongside the Ministry of Health.
• Police may have a role supporting clinical staff while responding to situations in the community where people are mentally distressed and where there is a risk of harm, but they must be supported with a health and peer response, and with training and checks and balances to ensure force is not used disproportionately.
• Revisit recommendations from the 2010 Law Commission’s report Mental impairment decision-making and the insanity defence, specifically the recommended move away from ministerial decision-making about the reclassification or discharge of a special patient or special care recipient.
• Provide a legal mandate to address physical health inequities experienced by tāngata whai ora.
• In consultation with population groups and their representative bodies, include explicit principles and rights in the legislation to ensure population groups receive appropriate and compassionate care and support and which recognise overlapping and interdependent experiences of discrimination or disadvantage.
• Futureproof against the on-going impacts of COVID-19 by incorporating into law the Ministry of Health’s guidance on the use of audio-visual technology in mental health assessment and examinations and monitoring and public reporting requirements about its use.
• Legally mandate, where possible, service development and practice changes, including upholding mana-enhancing care as a guiding principle in the new law to protect and enhance tāngata whai ora mana and dignity.