The inquiry into mental health and addiction led to the publication of the He Ara Oranga report in 2018.
It identified the Mental Health Act 1992 as outdated and proposed replacing it with new legislation that reflected a human rights-based approach, promoting supported decision making aligned with a recovery and wellbeing model of mental health that sought to minimise compulsory or coercive treatment.
Consequently, several initiatives were launched between 2021 and 2023 and included public consultation on a new mental health act and the creation of an expert advisory group to refine policy proposals.
The new Mental Health Bill was introduced to Parliament on October 1 for its first reading. It offers a once-in-a-generation opportunity for New Zealand to again provide international leadership in the space of social inclusion and equality.
As a group of clinicians, academics and service users with a deep knowledge of mental health legislation both at home and abroad, we recognise this Bill is an important juncture in our legislative arc both in terms of medical law and human rights.
However, the Bill raises significant concerns with regard to stale notions of care, inefficiently using resources, promoting the status quo of substitute decision making, increasing stigma and risk in the community and lack of consistency with international conventions. Each of these issues will be briefly described in turn.
Firstly, despite much reworking, the Bill reads much the same as the current Mental Health Act. This "new" Bill appears does not reflect a new direction of travel with regard to intended outcomes or mechanisms for wellbeing.
The Bill adds a crucial capacity assessment and makes it clear that it cannot be used if capacity is present. The Bill also requires a support person and supportive hui and suggests that advanced directives take the weight of a decision — referred to here as "compulsory care directives", which we believe is an oxymoron, because care should be provided rather than compelled.
Advance choice directives should be a tool to enable to people experiencing psychosocial distress to direct their care and treatment and should address issues broader than just medical treatment.
Secondly, there is some concern from a clinical perspective that this Bill will lead to a "revolving door" into and out of services, where people are detained and treated, then subsequently have their treatment discontinued — only to again become unwell, requiring further treatment.
If this further treatment involves the Act being invoked again then it will be highly distressing for individuals and will unnecessarily consume limited mental health resources as the legislation is invoked again and again for the same people. The continuation of this approach promotes the status quo of substitute decision making.
A much better developed process of supported decision making would help to reduce any likelihood of repeated applications of the new legislation to the same person.
Thirdly, we acknowledge that this Bill purports to promote supported decision making (a person-centred, patient-led approach) rather than substituting it.
However, this appears to be a semantic issue rather than supporting clinical practice. For instance, if a person is found to lack capacity, then another person by definition is making a decision for them — which means the Bill promotes substitute decision-making.
Including a capacity assessment simply overrides any option for this to be supported decision making. Despite emphasising advanced directives — the need to consider a person’s will and preferences — the Bill remains conflicted.
This balance of power ultimately comes down to the assessor, who, if they find that capacity lacking, will use substitute decision making.
Examining rates of use of the current Act is revealing. Use incrementally increases year on year and use in Māori continues to outstrip use in other ethnic groups.
Fourthly, the ongoing civil and criminal provisions remaining in the same piece of legislation mean that psychosocial distress and the stigma of being a danger to self and/or others are compounded.
While we acknowledge a societal urge to detain people to protect themselves and the public, we also recognise that by continuing to include civil and criminal components of responses to people experiencing psychosocial distress in the same Bill these groups are interwoven and treated as the same in terms of both disorder and risk — increasing stigma and accompanying mental health compromises.
Lastly, we note the new Bill does not meet the requirements of the Convention on the Rights of Persons with Disabilities (CRPD).
The CRPD is a United Nations convention signed by New Zealand almost two decades ago, and both visits by the UN to New Zealand have produced damning reports about our mental health legislation.
Changes in Australia (and elsewhere) that reflect some of the changes in the new Bill, such as the inclusion of a capacity assessment in the definition of mental disorder, have been criticised by the committee for the CRPD and there is no reason to believe this will not be the case here.
By signing the CRPD, New Zealand has committed to making local law compliant with international good practices. Many jurisdictions have struggled to become CRPD compliant, and we have an opportunity to show it can be done.
Taken together, we consider ourselves at a crossroads in the way people should be supported when experiencing psychosocial distress. If the system is considered unhelpful for the many thousands of people who access it, then why does it exist?
The new Mental Health Bill could provide a unique opportunity to support those in need, protect everyone’s human rights and again move New Zealand to the forefront of socially liberal legislation.
In today’s global environment, such a statement of intent would not only be powerful, but also make clear the value New Zealand places on liberal democracy and human rights.
In our view, the Bill reflects these efforts, but ultimately is not transformative: however, it could be.
We encourage everyone who has been — or has yet to be— impacted by psychosocial distress to make a submission and have their views heard.
As final thoughts, we 1) advocate placing supported decision making at the heart of the Bill;
2) urge the wholesale adoption of advance directives as a comprehensive voice for people who experience psychosocial distress;
3) argue that much more robust processes of supported decision making will help reduce the likelihood of continued and sustained substitute decision making, and
4) encourage the Bill to be truly CRPD complaint.
We truly have the chance to make a once-in-a-generation change to our mental health law.
• This the latest editorial in the New Zealand Medical Journal. It was written by Paul Glue, Professor of Psychological Medicine, University of Otago; Giles Newton-Howes, Associate Professor of Psychological Medicine, University of Otago Wellington; Jessie Lenagh-Glue, senior research fellow, Psychological Medicine, University of Otago; Armon Tamatea, Associate Professor, Department of Psychology, University of Waikato; Johnnie Potiki, consumer advisor, Te Whatu Ora Southern.
