Mental Health Bill submission

Since our formation the Commission has contributed to policy development to ensure Aotearoa New Zealand has mental health law based on human rights and eliminates coercive practices or reduces them to the greatest extent possible. We submitted on the Mental Health Bill, introduced into Parliament in October 2024.

Download and read our full submission on the Mental Health Bill (2024) (PDF 284KB)      

Summary of our submission on the Mental Health Bill

This Mental Health Bill is a step in the right direction to update the Mental Health (Compulsory Assessment and Treatment) Act 1992. To embed a fully modern human rights framework in our mental health and addiction system, more work is needed to promote supported decision-making in practice and reform other relevant legislation.

We acknowledge and broadly support the first half of the Bill that includes updated rights and introduces new roles and arrangements. We support the provisions in the Bill for promoting people’s own decision-making through advocacy and support roles, arrangements for hui whaiora (well-being meetings), and an ability for people to make their own statements about future care.

We support the Bill’s introduction of assessment of people’s decision-making capacity as part of new criteria for compulsory assessment and treatment of people. This is a welcome shift towards a modern supported decision-making legislative framework for specialist mental health care. Regarding policy objectives, we welcome the Bill’s express purposes, principles underpinning limited use of “compulsory care”, and recognition of Te Tiriti o Waitangi. These important changes will partially address policy problems of sustained and inequitable use of the current Act.

We recommend key areas to be strengthened under the Bill:

• seclusion is eliminated within a specified timeframe under the Act
• courts and tribunals decision-making procedures under the Act reflect best practice approaches
• community compulsory treatment/care orders are reduced and eventually phased out*
• increased reporting on how the Act is implemented.

Reducing coercive practices

The policy problems that the Bill is intended to address are well known - issues related to mental health services’ use of coercive practices that are inconsistent with human rights and therapeutic care.

Over the past five years, the number of people subject to compulsory community treatment orders has steadily increased from 128 to 135 people per 100,000 population. There is persistent inequity in use of the current Act with higher rates of seclusion and compulsory community treatment particularly for Māori and for Pacific people. The number of Māori subject to community orders is increasing at a faster rate by 13.0 percent from 2018 to 2020/21 compared with 5.8 percent for non-Māori, non-Pacific peoples.

In the Bill’s current form, the implementation of the objective to promote supported decision-making could be frustrated with the mix of new advocacy and support roles operating alongside existing statutory roles under the Act. With the current model for applications and decisions on compulsory care orders remaining intact, it is not clear how new authorised roles (such as nominated persons) will effectively exercise their authority alongside responsible practitioners.

In our view, a reformed approach that enacts collaborative decision-making authority and responsibility under the Act will support practice shift and lead to outcomes that respect people’s rights, will and preferences, to make decisions about their care.

Shifting to supported decision-making

The Bill does not go far enough to enable the shifts in practice we want to see lead to better outcomes for people. The Bill’s second half retains substituted decision-making roles and processes that are largely unchanged from the current Act (such as a responsible clinician and a court hearing as the model for applications and orders for compulsory care).

Implementing the new law

The system is under pressure. Increased investment in more - and a broader range of - services is needed to respond to people in crisis. Once the ‘crisis’ moment in time is passed, people need clear pathways to access care and support they need to continue their recovery. These pathways must include community-based, peer-led, Kaupapa Māori services and social support to ensure access to safe and secure housing, meaningful social engagement, and employment. These kinds of services have significant benefits for people’s wellbeing and are critical to reduce, even avoid, the use of compulsory treatment.

Achieving the intent of the Bill depends on Government action on other enablers of workforce, investment, technology, and communication. People need clear pathways to access the care and support they need to continue their recovery and sustain their wellbeing in the community. Increased access to high-quality and people-centred services is critical, as are changes to clinical and provider practice. Addressing discrimination and stigma across the system and in our communities will play a crucial role in ensuring the intent of this Bill is realised.

We recommend changes to the Bill to enable practice that respects people's rights to make decisions about their care and treatment and supports their capacity to do so.

About the Mental Health Bill process

The Mental Health Bill is currently before the Health Select Committee. Written submissions closed on 20 December 2024 and oral submissions are being head over coming weeks. The Committee must report back to full Parliament by 23 April 2025. You can read bo the full the bill and over 300 submissions on the Parliament website.

* We refer to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)