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We’re taking the government to court to challenge New Zealand’s outdated Mental Health Act – here’s why

It’s been five years since an independent inquiry into mental health and addiction called on the government to repeal and replace the Mental Health Act (MHA).

The He Ara Oranga inquiry described New Zealand’s mental health law as out of pace with societal shifts and recommended it be replaced to reflect human rights and minimise compulsory or coercive treatment.

But the reform process has been so slow, so a colleague and myself decided to take a court case against the Attorney General and the Ministry of Health. We want to clarify the MHA’s legal provisions that force someone deemed to have a mental disorder to have compulsory treatment.

In a New Zealand first, the courts have issued a protective costs order, ensuring the defentants (the Attorney-General and Ministry of Health) cannot apply to have their costs awarded if we lose.

The act can currently be used to detain people under a compulsory treatment order, in a hospital or at home. This means they have to comply with treatment even if they have the capacity to refuse and don’t want to. Colleagues and I have referred to this as a kafkaseque situation.

The enforcement of unwanted medical treatment onto patients who may be fully competent to refuse it also violates New Zealand’s international human rights obligations under the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and is arguably unethical.

Compulsory treatment doesn’t make things better

Mental health legislation in New Zealand was developed to support the delivery of the best mental healthcare to people in psychological distress. This is also described as “psychosocial distress”, recognising it is partly individual but also caused by the structure of the society in which people live.

Such distress is common: one in five New Zealanders will experience it in any given year. Sometimes it follows major life changes such as relationship break-ups or bereavement, at other times it happens for no clear reason. We are all potentially within the remit of the MHA.

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Legislation has a profound impact on what we do and how we act, and this is also true for the MHA. It shapes much of the practice of psychiatry in New Zealand and internationally.

When the act came into force in 1992, the common view was that it would help keep people well and out of hospital and stop the revolving door of readmission.

But three randomised controlled trials now conclusively show detaining people using a compulsory community treatment order does not prevent readmission.

When we looked at real-world New Zealand data, we found being detained under compulsory treatments orders only reduced readmission for people with psychotic disorders. The opposite happened for people with a range of other diagnoses, including dementia, bipolar or major depressive disorder and personality disorders.

Support is more effective in preventing worst-case outcomes

Does the MHA prevent really bad outcomes such as suicide? We don’t think so. The suicide rate in New Zealand has been stable for more than a decade and has recently fallen.

Between 1978 and 1998, over the period when the MHA came into force and became embedded in practice, the suicide rate actually went up.

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We have recently reviewed the international literature on suicide and self-harm for the Lancet and are clear that a good assessment and support plan is more effective than trying to predict if a person will follow through on suicidal thoughts.

All these issues have been brought to light in the He Ara Oranga inquiry. We encourage people to participate in the ongoing reform process to ensure any new legislation reflects the evidence, supports people’s human rights and helps shape a better mental health landscape for all New Zealanders. Our approach along a legal avenue is only one of many ways to remain engaged.

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