Recent amendments to the Mental Health (Compulsory Assessment and Treatment) Act 1992 raise some major questions. Among them:  will the amendments improve the protection of individual rights and the effective application of the Act? And has the government’s piecemeal approach introduced practical complications into the health and legal systems, and raised complex philosophical issues which may prove difficult to resolve?

The Mental Health (Compulsory Assessment and Treatment) Amendment Bill was introduced by Justice Minister Andrew Little on 17 March 2021 and was enacted unamended as the Mental Health (Compulsory Assessment and Treatment) Amendment Act 2021 (the Amendment Act), receiving royal assent on 29 October 2021.

The intention of the amendments was two-fold. The first was to address criticism of Aotearoa New Zealand’s mental health legislation. New Zealand ratified the United Nations Convention on the Rights of Persons with Disabilities (Disability Convention) in 2008 but has been criticised for not implementing practical measures to protect those rights, particularly in the matter of indefinite treatment orders.

The second intent of the amendments was to enable ‘more effective application’ of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the MH Act).

I suggest these two goals make uneasy bedfellows, particularly in a time of considerable social upheaval and when emergency public health measures have been evoked. There seems to be an inherent contradiction in attempting to make an administrative machine run more smoothly while protecting the rights of individuals whose lives are affected by it.

Certainly, the amendment process was not the principled review envisaged by the Government Enquiry into Mental Health and Addiction in its report, He Ara Oranga (Pathways to Wellness) published in November 2018. This report recommended the repeal and replacement of the Act “so that it reflects a human rights-based approach, promotes supported decision-making, aligns with the recovery and wellbeing model of mental health and provides measures to minimise compulsory or coercive treatment”.

Submissions from the ADLS Mental Health and Disability Law committee were also ignored. These recommended deferring amendments until after the proposed full review of the MH Act. The committee also recommended that changes to the law should be made as part of a full review of capacity legislation, including mental health.

Other individuals and organisations also expressed misgivings. Principal Family Court Judge Jacquelyn Moran noted in her submissions on the bill to the Health Select Committee that the new provisions would strain an already struggling court system and might not therefore have the desired effect:

• There is already huge pressure on our judicial resource with backlogs in most areas of our work. Any transition period will, by necessity, require the allocation of additional judicial resource to mental health hearings and this will in turn, lead to further delay in other areas. The extent of the impact will vary from region to region with the Metropolitan centres being most severely impacted.

Chief Ombudsman Peter Boshier, in his submissions, pointed out the fundamental need to review the underlying principles on which the Act is based:

• I consider that aspects of the Act are discordant with contemporary thinking about mental health and human rights. I believe it incorporates a medical model approach to mental health and disability, which in turn enables the use of compulsion … This contrasts with the Disability Convention which incorporates a social model and rights-based approach in its consideration of mental health and disability.

However, the government did not wait for the completion of research and public consultation which would have better informed its decisions on the Amendment Act. For example, it chose to press ahead with legislation before the outcome of a full review of the law involving adult decision-making capacity. This was launched late last year by Te Aka Matua o te Ture | Law Commission. Its terms of reference specifically include mental health legislation.

In addition, the Ministry of Health announced a public consultation process on 22 October 2021 purporting to accept the recommendation to repeal and replace the Act. This closed on 28 January 2022, an impossibly tight timeframe for full public consultation.

To complete matters further, the statutory amendments were separated into two parts: those which came into effect on royal assent on 30 October 2021 and other provisions (in six sections) which will come into effect on or before 30 October 2023. Practitioners in this area of law take note!

Provisions in effect from 30 October 2021

These have administrative efficiency at their core. They authorise permanently that which previously had to be renewed every three months under emergency covid-19 health orders.

• The use of audio or audio-visual technology (AVL) so family members can be present at assessment examinations of proposed compulsory patients where their physical presence is ‘not reasonably practicable’.
• Protocols for using force when special patients are being transported.
• An expansion of the powers of examination and assessment to include registered nurses practising in mental health. Previously only more highly qualified nurse practitioners were included in this role.
• The permanent use of AVL by clinicians, mental health practitioners or psychiatrists to exercise powers under the Act to access persons, if it is ‘not practicable’ for the person to be physically present and the use of an AVL link is appropriate.

My concern is that in making permanent practices which were made necessary during covid health emergency, the processes in the MH Act will become dehumanised.

Provisions coming into effect on 30 October 2023 or before by Order in Council

The amendments listed below are a response to criticism of the existing mechanism for making compulsory treatment orders indefinite. It has been argued that they were a breach of an individual’s fundamental right to choose the medical treatment he/she receives, including treatment for psychiatric conditions.

• Indefinite compulsory treatment orders will be replaced with a judicially monitored further extension for a one-year period.
• A District Court judge may use AVL to examine a patient when community treatment orders are to be extended if the patient consents to its use (new s 34C).
• A judge may determine that all or any participants may appear at a hearing by AVL if the patient consents, subject to a requirement to consider the potential impact of the use of the technology on the effective maintenance of the rights of the person to be heard and call evidence under s 20.
• The court may dispense with examination of a patient and formal hearing if the patient has provided written consent on the advice of a solicitor (s 34D inserted into the MH Act). As soon as the latter provision comes into effect, it will introduce a practical challenge for practitioners in the field. Advice pursuant to this section must be given by a solicitor, defined in s 6 of the Lawyers and Conveyancers Act 2006. Most lawyers approved by legal aid to represent mental health clients hold practising certificates as barristers sole and would not therefore be eligible to provide the requisite advice.

This provision also raises the much larger question of the capacity of a client to consent to a waiver of due process.

In the matter of human rights, the amendments appear to give with one hand and take with the other and suggest to me that the hoped-for expansion of human rights is unlikely to be fulfilled. As always, the devil is in the detail. It seems likely that there will be considerable bureaucratic confusion until the health system, legal aid and the courts catch up with changes to the MH Act which will require more staff, more paperwork and possibly more intervention from higher courts to define aspects of the new law.

The implications of enacted and proposed changes to the MH Act will be addressed in an ADLS seminar on 10 February 2022 with a panel with psychiatric, legal and judicial expertise as well as input from the district inspectorate. This is an important opportunity for the profession to get to grips with the coming changes.

Patricia Scriven is an Auckland lawyer with lengthy experience in mental health practice and a member of the ADLS Mental Health and Disability Law committee