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Mental Health Act structurally sound but concerns about rising use of compulsion

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Thursday 31 October 2013 12:45pm

As the Mental Health Act turns 21 this coming month (November), a group that has written a new book on mental health law in New Zealand has concerns about over-use of Community Treatment Orders, and Māori over-representation under compulsory treatment.

Some 4000 people are now treated under this Act at any time, mostly outside hospital, under the Community Treatment Order scheme.

A group of leading lawyers, psychiatrists and other researchers working in mental health law raise these concerns in New Zealand’s Mental Health Act in Practice, edited by Professor John Dawson of the University of Otago’s Faculty of Law, and Kris Gledhill, senior lecturer in law at the University of Auckland.


The authors say the book constitutes a comprehensive non-governmental review of the operation of the Act, the main legislation governing compulsory psychiatric treatment in New Zealand.

In assessing the Act’s effectiveness since it became law in 1992, the group argues that the basic structure of the legislation is sound. However, they have concerns about defensive practice in its operation, and about over-use of its compulsory powers, especially heavy use of indefinite Community Treatment Orders (CTOs).

“The number of patients under compulsory treatment seems to have increased significantly in the past five years, and Māori over-representation is an ongoing concern,” says Professor Dawson.

“The authors’ concerns are fuelled by the extensive use of indefinite Community Treatment Orders under the Act; by the small number of compulsory patients who actually apply for a review of their compulsory status before the Mental Health Review Tribunal; and by the rarity of patients’ discharge from compulsion by this Tribunal.”

He says the breadth of the concept of “serious danger to others”, in the standards governing compulsion, seems to have expanded over time, with the result that a strongly preventive and predictive approach is now taken to compulsory treatment.

“If it is thought, for instance, that a person would meet that standard if they were discharged, because they would then cease taking medication and would then relapse, that seems to be enough to say they currently meet the criteria for compulsion under the Act. But it is not clear that’s the correct interpretation of the Act,” says Professor Dawson.

He adds that increasing social deprivation in some parts of the country may be fuelling local use of CTOs, and patients seem to be flowing in increasing numbers into the mental health system from the criminal courts, perhaps due in part to changes in the law governing fitness to stand trial.

In combination, these features seem to have boosted use of compulsory psychiatric treatment in New Zealand, even if there are considerable variations in the rate at which compulsion is used in different parts of the country.

The group calls for more research on the causes of this apparently increasing rate of compulsion.

“We are asking whether this rate is really rising or is it simply an artifact of changes in the way in which these numbers are collected over time? What are the factors driving up these rates, and what could be done to reduce them?” says Professor Dawson.

The book, published by Victoria University Press, is specifically written to mark the 21st anniversary of the introduction of the Act. Generally, the authors support the basic structure of the mental health legislation.

“They like the way in which the law states the standards for compulsion – by reference to discrete disorders of mental function, combined with certain risks of harm that must be present, to the patient or others,” says Professor Dawson.

“They favour the current, staggered process of compulsory assessment and treatment that requires ongoing decision-making about the patient and should ensure a person receives a proper psychiatric assessment before longer-term decisions about compulsory treatment are made.”

The authors also endorse the right of regular access for patients to independent review of their status before a court or a tribunal, and they support providing patients with advice about their rights and review options and the requirement that mental health professionals must usually consult with the patient’s family or whanau.

“All these broad features of the law receive general support,” he says.

This book is authored by the leading writers on law and psychiatry in the country.

It will be launched through a series five conferences in New Zealand’s main centres in November, to be hosted by ANZAPPL (the Australian and New Zealand Association of Psychiatry, Psychology and Law).

The first will be held in Dunedin, on November 5, at the Hearltland Hotels at the Stadium, starting at 8.30am. Conference programme - Dunedin (PDF 42 KB).

Requests for the book can be placed with Victoria University Press: see their website.

For further information, contact

John Dawson, Professor,
Faculty of Law,
University of Otago
Tel 64 3 479 8909

Kris Gledhill,
Senior Lecturer,
Faculty of Law
The University of Auckland
Tel 64 9 373 7599, ext. 89562

A list of Otago experts available for media comment is available elsewhere on this website.

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