Human rights and mental health law – a brief Introduction

A forthcoming ADLS forum (taking place on Tuesday 22 August 2017 – more details below) will explore practice before the Mental Health Review Tribunal (MHRT).

Kris Gledhill

The forum will set out the essentials that those who appear before this body need to know and also suggesting some unexplored areas that might be developed in suitable cases.

This article puts this in context and examines briefly a selection of the developing areas.

The MHRT is a specialised judicial body that reviews the ongoing use of compulsion against people subject to long-term compulsion under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

Under the Act, there is an administrative route into detention for the purposes of assessment (and, it should be remembered, treatment without consent), set out in Part 1. If this does not resolve matters to the satisfaction of the mental health professionals, the Responsible Clinician in charge of the team can seek a judicial order for ongoing compulsion, on an out- or in-patient basis.

If this is granted, under Part 2 of the Act, it lasts for six months, but can be renewed by the court for a further six months. If the order is renewed again, it becomes indefinite and the MHRT takes over as the judicial body to which the person subject to compulsion can apply for release.

The MHRT sits under Part 7 of the 1992 Act. This requires formal clinical reviews of whether compulsion should remain in place – if release does not follow, the MHRT may become involved for long-term patients (and also those detained under the Criminal Procedure (Mentally-Impaired) Persons Act 2003). This necessarily means that the MHRT is concerned with patients who are viewed as subject to enduring and serious mental health problems, and therefore vulnerable.

Statistics in the most recent Annual Report of the Office of the Director of Mental Health, covering 2015, indicate that 9904 people were subject to compulsion during the year and that 5612 people were subject to compulsion as at 31 December 2015. Māori make up 26% of mental health service users, and compulsion is 3.6 times more likely to be applied to Māori than to non-Māori.

The MHRT also produces an Annual Report, and its most recent one covers the year to 30 June 2015. It received 156 applications (though 57 were withdrawn) – in the same year, it ordered the lifting of compulsion in respect of only five patients.

The task of the Tribunal is to determine whether a person is mentally disordered. This is defined in section 2 of the 1992 Act and involves a largely clinical question (an “abnormal state of mind” with one or more of several specified characteristics), and a risk-assessment question (the degree of the disorder has to represent a “serious danger” to the person themselves or to others or “seriously” diminish the person’s capacity to look after themselves).

As Professor John Dawson has commented, “The definition … has a complex structure. It uses specialised terms … It is applied through a complex process …” (see John Dawson, “The Complex Meaning of ‘Mental Disorder’” in John Dawson and Kris Gledhill (Eds), New Zealand’s Mental Health Act in Practice, VUP, Wellington, 2013 29 at 31). But this should not divert from the fact that the core question is the legal one of whether preventive detention or community-based compulsion is necessary.

Need for a rights-based approach?

This application of difficult legal criteria relating to people who may need special protection is inevitably one that calls for the strict application of rights-based standards.

In the first place, the very nature of what is in play requires the highest standards of due process – mental health law involves restrictions on freedom of movement and possibly detention, combined with the prospect of medical treatment without consent, often involving medication that has significant and unattractive side-effects.

Secondly, it involves inherently difficult questions. Is it justified to abandon the autonomy-based right to reject advice from doctors? What should we make of the statistics, including those as to the over-representation of Māori? What approach should we take to risk? What is the impact of the right to health?

Thirdly, it is an area where occasional domestic jurisprudence relating to rights standards is supplemented by significant international case law. This covers not just the obvious matters of when liberty and autonomy rights can be restricted and the procedural and review processes that must be in place, but also to the rights to life (usually from inadequate treatment) and not to be subject to torture or inhuman or degrading treatment (from such matters as treatment without consent, the use of seclusion, detention in inadequate conditions, or the failure to protect people with mental health difficulties (see the author’s discussion “A ‘Rights’ Audit of the Mental Health Act” in New Zealand’s Mental Health Act in Practice).

Fourthly, it is an area where the “living instrument” nature of human rights standards has involved significant developments. Most particularly, the Convention on the Rights of Persons with Disabilities 2006, to which New Zealand is a party, has several themes that call into question the propriety of our approach to those subject to mental health law. In particular, there is the differential role of consent in relation to physical as opposed to mental ill-health, the need to avoid making decisions for people but instead to ensure that people are supported to make their own decisions, and the need to avoid detention on the basis of disability.

Our governing legislation was no doubt drafted so as to comply with human rights standards as they were understood in 1992, but things have moved on. The common law rules of interpretation have also developed to endorse the view that courts should strive to secure compliance with international standards so far as is possible. The MHRT is a judicial body which should regularly face factual situations in which an important question is how to apply updated understandings of rights. Accordingly, mental health lawyers must also be human rights lawyers.

Kris Gledhill was a barrister in London whose practice included a focus on mental health law; he also sat as a member of the English Mental Health Review Tribunal.

ADLS’ forum “MHRT: The Essentials and The Unexplored” is taking place on Tuesday 22 August 2017. It will provide an overview of the MHRT and practical advice on how to prepare for hearings. As well as Kris Gledhill, presenters include Robyn von Keisenberg (Barrister and Deputy Convenor, Mental Health Review Tribunal), Paul Hannah-Jones (Barrister), Dr Lillian Ng (Senior Lecturer, University of Auckland). The forum will be chaired by her Honour Judge Pippa Sinclair. For more information or to register for this event, click here.

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