You have asked questions about: the definition of ‘mental disorder’ the review procedures for compulsory patients the scope of ‘treatment’ under the MH Act the effect of advance directives conflicts of interests and the District Inspector voting rights of people under MH Act

A Discussion of the Mental Health Act John Dawson Faculty of Law University of Otago July 2011

Question: Is the term ‘mental disorder’ or ‘mentally disordered’ likely to remain in the Act?

Legal criteria for compulsory treatment under Mental Health Act 'Mental disorder', in relation to any person, means an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it- (a) Poses a serious danger to the health or safety of that person or of others; or (b) Seriously diminishes the capacity of that person to take care of himself or herself. AND compulsory treatment is ‘necessary’.

The purposes of the legal standards governing compulsory treatment To include some situations under the Act: where there are clear disturbances of particular mental functions (mood, perceptions, thought processes, etc) AND To exclude other situations: where total behaviour is unusual, but there is no clear disturbance of a particular mental function.

Sir Aubrey Lewis, in ‘Health as a social concept’, (1953) 4 Brit J Sociology 109 Mental ill health is best defined in terms of evident disturbance of particular functions of the mind, not in terms of disturbed social functioning alone. “If non-conformity can be detected only in total behaviour, while all the particular psychological functions seem unimpaired, health will be presumed, not illness.”

The purposes of the legal standards governing compulsory treatment To include some situations under the Act: where there are clear disturbances of particular mental functions (mood, perceptions, thought processes, etc) AND To exclude other situations: where total behaviour is unusual, but there is no clear disturbance of a particular mental function.

Could the legal standards for compulsion be based on incapacity to consent to treatment, without reference to ‘mental disorder’? The law has well-established incapacity tests: Inability to understand, recall, process, appreciate, or weigh relevant treatment information; or Complete inability to communicate a decision. Eg, section 2 Mental Capacity Act 2005 (England and Wales).

Possible problems with greater recognition of a right to refuse treatment for patients with capacity to consent May prevent control of people who are ‘mentally disordered’ and ‘dangerous’ but retain their capacity to consent. May prevent intervention for people who are ‘mentally disordered’ and suicidal, or self-harming, but retain their capacity to consent. May reduce continuity of treatment for people whose capacity fluctuates. May preclude sustained care for those whose capacity is restored only through involuntary treatment.

Question: What is the process if a person does not agree with a treatment order and wants a court hearing? >> It depends on where they are in the MH Act’s process.

The compulsory treatment process in NZ application for assessment made by any person over 18 certification by one medical practitioner powers of entry, detention, transportation (Police available) compulsory assessment examination by a specialist certification by that specialist 3 periods of compulsory psychiatric assessment (5, 14, 14 days) application by Responsible Clinician for Compulsory Treatment Order (Inpatient or Community TO) hearing before a Family or District Court Judge Compulsory Treatment Order for 6 months treatment ‘for mental disorder’ in hospital or community ongoing reviews before Court and Review Tribunal immediate discharge when ‘no longer mentally disordered’

Review options for compulsory patients During month of assessment: section 16, urgent judicial hearing After 1 month: CompTO hearing b4 District Court Judge (DCJ) After 3 months of CompTO and clinical review: application for hearing b4 Review Tribunal After 6 months of CompTO: renewal of order by DCJ After 9 months of CompTO and clinical review: application for hearing b4 Review Tribunal After 12 months of CompTO: order made indefinite by DCJ Thereafter: 1 Review Tribunal application every 6 months Complaint of breach of patients’ rights: to District Inspector Backstop jurisdiction: a High Court inquiry under section 84.

Question: How wide is the definition of ‘treatment’ under the Act?

Powers to treat patients under MH Act Section 30(1) Every inpatient order shall require the continued detention of the patient in hospital … for the purposes of treatment, and shall require the patient to accept that treatment. Section 59(1) Every patient who is subject to a Compulsory Treatment Order shall … be required to accept such treatment for mental disorder as the responsible clinician shall direct. Subject to a second opinion from another psychiatrist, after the first month of a CompTO, if the patient does not consent.

Community Treatment Powers a duty on the patient to accept psychiatric treatment to accept visits and attend appointments to live where directed power of swift recall to hospital, without re-certification police assistance available in that process treatment without consent in a hospital or clinic no ‘forced medication’ in community settings

What is ‘treatment for mental disorder’ under the Mental Health Act? In addition to measures aimed directly at treatment of mental disorders, this includes: diagnostic tests treatment to alleviate symptoms or prevent deterioration nursing care and rehabilitation surgery following self-harm or ingestion of objects treatment where the refusal is a ‘manifestation of mental disorder’. But no power to treat ‘physical disorders unrelated to mental disorder within the meaning of the Act’: B Hoggett: Mental Health Law (4 th ed, London, 1995).

Treatments held covered by equivalent provisions of UK Mental Health Act 1983: ‘necessary pre-requisites’ to psychiatric treatment ‘structured environment of the hospital’ forced feeding in anorexia or psychotic self-starvation caesarian section, where refusal was based on delusional beliefs, foetus seriously at risk, mother keen to have child, its death would exacerbate her mental disorder. One hard case: contraception for an acutely unwell patient when pregnancy could cause her grave harm.

Question: Can a person under the MH Act be forced to have an abortion?

Question: Can a person under the MH Act be forced to have an abortion? This is unlikely, and cannot be approved solely by a Responsible Clinician under the MH Act. An abortion without the woman’s consent might possibly proceed where: - the woman lacked the capacity to give consent - 2 consultants certified, under the Contraception, Sterilisation and Abortion Act 1977, that there would be ‘serious danger’ to the woman’s health if the pregnancy continued.

Question: What is the effect of an advance directive made by a person who later comes under the MH Act? It constitutes a clear expression of that person’s views, so should be considered in discussions about treatment. BUT an advance directive refusing treatment is trumped by the powers to treat provided by the MH Act.

An advance directive requesting treatment without consent ‘if I become unwell again’ would not authorise a person’s detention for any length of time without invoking the procedures of the MH Act, because that would deny the person the benefits of those procedures: eg, their right of access to a court.

Question: Is there a conflict of interest where a District Inspector has previously represented a person under the Act?

Question: Is there a conflict of interest where a District Inspector has previously represented a person under the Act? It depends on the task the DI is performing at the time. Yes, if the DI is inquiring into a breach of patients’ rights (how would it look from the point of view of the staff?). No, if the DI is simply informing the patient of their rights.

Question: Can I still vote if I am under the MH Act? Yes except for certain special patients detained for more than 3 years following an order of a criminal court.

Question: If I am under the MH Act, who gets to appoint an advocate for me? A patient advocate would be designated by the patient advocacy service (only a few advocates are employed by them). In theory, you can choose your own lawyer, but very few lawyers do MH Act work, so the choice may be very limited in practice.

Question: Who will pay me to attend to attend a MH Act hearing before the judge, if I have to take time off work?

Question: Who will pay me to attend to attend a MH Act hearing before the judge, if I have to take time off work? No-one But perhaps you could negotiate a more suitable time for the hearing through the Registrar of the Court: eg, 4pm.

Question: When will the MH Act be reviewed? I don’t know. MH Act not currently under review, as far as I am aware. Currently under review: Alcoholism and Drug Addiction Act 1966 Aspects of unfitness to stand trial, under Criminal Procedure (Mentally Impaired Persons) Act 2003.