Make sure you’re prepared for new mental health legislation

By the end of 2024, New Zealand will likely have new mental health legislation that will require significant change in practice for clinicians. Areas of change include use of a capacity-based standard for mental health treatment without consent, supported rather than substituted decision-making, some form of recognition of advance directives, greater consultation with whānau and with Māori and, overall, a reduction in the use of coercion in mental health care.

Once the new legislation is embedded, the familiar processes of applying for compulsory assessment, and conducting and documenting those assessments, will likely be very different to those currently in place.

New Zealand’s current legislation, adopted in 1992, was considered progressive for the time. The legislation was passed as the policy of deinstitutionalisation neared completion, with all standalone hospitals closing by 1998. In particular, the 1992 legislation provided for compulsory treatment out of a hospital setting, and for greater procedural protections for people subject to compulsory assessment and treatment.

Compulsory community treatment had been provided under the discharge provisions of the 1969 legislation, but the new legislation expressed a preference for community as the site of treatment. Even the acute stage of compulsory assessment could be undertaken out of hospital.

The process of compulsory assessment was “staged” so the consumer could be released from the legislation at any time, rather than waiting for the conclusion of a mandatory period of hospitalisation. Consumers were granted formal rights to request review of their legal status by a judge, and provisions for accessing review tribunals were strengthened.

The legislation was more restrictive, with specific provisions excluding compulsory treatment solely on the grounds of religious or political beliefs, sexuality, criminality, substance use, cultural beliefs or intellectual disability. The legislation required respect for cultural beliefs and consultation with whānau. Altogether, the 1992 legislation was considered to be forward looking and progressive.

In 2006, the Convention on the Rights of Persons with Disabilities (CRPD) was adopted by the United Nations. Under this convention, mental illness was considered a “disability” with the intention that the rights of people with mental illness were the same as the rights of people with other disabilities. There was no special category of rights pertaining to those with mental illness. The CRPD did not create new rights but brought within a single instrument the wide range of rights supported in other UN conventions.

New Zealand ratified the Convention in 2008. Since its adoption, the CRPD has acted as a point of critique of our mental health legislation, especially the use of substitute decision-making and the linking of risk and mental disorder as criteria for compulsory treatment. Successive reports of the UN Committee on the CRPD have criticised New Zealand’s legislation for failing to give full effect to the requirements of the convention.

In 2018, He Ara Oranga: Report of the Government Inquiry into Mental Health and Addiction recommended that New Zealand’s current mental health legislation, the Mental Health (Compulsory Assessment and Treatment) Act 1992, be repealed and replaced with new legislation. The inquiry concluded that the 1992 legislation is no longer fit for purpose with respect to New Zealand’s obligations under the CRPD, or in terms of new understandings of how legislation should reflect obligations under Te Tiriti o Waitangi.¹

Submissions to He Ara Oranga drew attention to the disempowerment experienced by people subject to mental health legislation, and of a risk-averse, crisis-focused approach to mental health.

There were also concerns, noted in successive reports from the Ministry of Health, about significant and continuing inequities in the use of mental health legislation. For example, Māori are four to five times more likely than non-Māori to be subject to compulsory community treatment, even after allowing for population differences.

Use of mental health legislation also shows significant regional variation and is associated with area-level social deprivation. These concerns could not be addressed by tinkering, by adding clauses or guidelines, to amend the 1992 legislation. Wholesale change was needed. The Government accepted the recommendation of He Ara Oranga and committed to new legislation.

The aim of reform is to substantially change the landscape of mental health legislation in New Zealand

The Government’s intentions for new legislation were made clear in the 2021 public discussion document Transforming our Mental Health Law, which set out the framework for reform. This is a bold and visionary document that makes it clear the aim of reform is to substantially change the landscape of mental health legislation in New Zealand. The foreword states the aim of “ensuring our mental health law 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”.²

The forward also states that the existing legislation is “out of step with Te Tiriti o Waitangi”, and the document commits to legislation that supports te ao Māori. Equity is a key issue in Transforming our Mental Health Law, signalling that different and improved procedural processes are not adequate if they do not reduce the current inequities in use of mental health legislation.²

A critical area for change, and one in which New Zealand is currently lagging behind its obligations under the CRPD, is the adoption of capacity-based criteria for assessment under mental health legislation.

Clinicians are used to the current “mental disorder plus risk” standard, so the move to capacity-based assessment will provide a challenge. Some guidance is already available under other legislation, perhaps most notably under the seldom used Substance Abuse (Compulsory Assessment and Treatment) Act 2017.

Supported decision-making is quite different to the current process of having an appointed clinician make decisions on behalf of consumers based on the clinician’s perception of best interests. By contrast with this process of substitute decision-making, supported decision-making means ensuring consumers have the supports needed to express and communicate their decisions, including decisions to consent to (or decline) treatment.

Advance directives are a consumer right under the Code of Health and Disability Services Consumers’ Rights, but in mental health, they are a passive right and one that is infrequently realised in practice. Recent New Zealand research has confirmed that advance directives can be used to enable consumers to communicate healthcare preferences in mental health crisis situations where they may not be able to easily express those preferences.

With an election looming, it is not clear whether draft legislation will be available this year, but it seems highly likely that new legislation will be in place in 2024. Key areas of professional development for clinicians are likely to be working with a capacity-based standard of assessment, developing processes of supported decision-making, working with advance directives, and supporting te ao Māori. None of these areas are entirely new, but all will require new understanding and skills as they are applied to an area of clinical practice that has historically stood apart from the mainstream of health legislation.

Anthony O’Brien is an associate professor of nursing at the University of Waikato