Repeal and replace the Mental Health Act

Repeal the current Mental Health Act (which is not consistent with human rights) and replace it with a new legal framework which:

  • ensures that all mental health services are based on free and informed consent,
  • outlaws compulsion, seclusion and other coercive practices,
  • includes supported decision making and independent advocacy, and
  • fully complies with the rights and freedoms described in UNCRPD.

Why the contribution is important

The Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHA) permits people to be subjected to compulsory treatment, including seclusion, restraint and substitute decision making.

The CRPD committee has recognised that compulsory treatment and restrictive practices are inconsistent with the rights and freedoms described in UNCRPD. Most respondents to a NZ review in 2017 (undertaken under the last Disability Action Plan) considered the MHA inconsistent with human rights laws and principles. Local critics have included the Mental Health Commissioner, Office of the Ombudsman, Human Rights Commission and Independent Monitoring Mechanism of the UNCRPD. The government has not yet committed to any change in the law.

Compulsory treatment removes individuals’ rights to decide (with or without their chosen support) at the time or in advance, on their own treatment. It permits detention, and administration of treatments including electro-convulsive therapy without informed consent. It can restrict an individual’s freedom of movement, and ability to make broader decisions about their life.

Compulsory treatment is incompatible with UNCRPD, particularly article 12, equal recognition before the law, and article 14, liberty and security of the person.

The MHA allows for indefinite compulsory treatment. Some community treatment orders may have been in place for more than 20 years. There is no independent review or monitoring of the Act, and no clear records exist of long-term use of Community Treatment Orders.

A person subject to compulsory treatment under the MHA is denied legal capacity, even though an estimated 66% of people under the MHA would have the capacity to consent to treatment. Choices about their treatment are made through substitute decision making. This denies autonomy and control, and is inconsistent with article 12 of UNCRPD.

Individuals may need support to exercise their decision making. Some may benefit from advanced directives that describe how they would like decisions to be made. Supported decision making approaches would be respectful of human rights.

Seclusion, restraint and restrictive practices limit individuals’ freedom of movement. Seclusion poses risks including re-traumatisation, loss of dignity, significant distress, and even death. It is incompatible with article 14 of the UNCRPD. UN bodies have recommended its elimination in health services.

These issues disproportionately affect Māori. Despite our Treaty of Waitangi commitments to actively protect Māori health, and laws which require the health sector to work towards eliminating entrenched health inequities between Māori and others, Māori are significantly more likely to be subject to compulsory treatment, and to experience seclusion. These disparities have increased in recent years.

by moiraclunie on November 23, 2018 at 10:47AM

Current Rating

5.0
Average score : 5.0
Based on : 8 votes

Comments

  • Posted by aritlewis November 23, 2018 at 11:21

    Tautoko - it isn't meeting the needs of today nor is it compatible with international standards
  • Posted by leomcintyre November 23, 2018 at 15:27

    The practice of depriving people of the power to choose whether or not to accept treatment causes harm.
  • Posted by ShaunMcNeil November 23, 2018 at 17:00

    The Act is long overdue attention and due to the delay, the changes required are so fundamental that the whole thing needs replaced. Supported decision making, right to non legal independent advocacy, remove legal basis for seclusion and night orders, greater self determination and adherence to human and disability rights required.
  • Posted by FionaHoward November 26, 2018 at 15:26

    Coercive practices such as seclusion are disproportionately applied to Maori, and compulsory treatment such as CTOs are also applied differently in different regions, as the annual reports from the Director of Mental Health show. Appeals are seldom successful, another sign that the system is unfair and biased.
  • Posted by CEOCM November 26, 2018 at 21:03

    The Act is only required in a risk-averse culture, which ironically increases risk by preventing therapeutic relationships to develop. If we protect tino rangitiratanga, have an underlying framework of human rights, and support responsible clinicians to offer choice, spend time to build trust and develop a mutually respectful relationship, we would not need an act to restrain, coerce and fence people in.
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