New Zealand’s Mental Health Act in Practice
John Dawson and Kris Gledhill (eds)
Victoria University Press, $50.00,
This book, released to coincide with the 21st birthday of the Mental Health (Compulsory Assessment and Treatment) Act of 1992 (MHCAT Act), presents a smorgasbord of contributing authors’ perspectives of the coming of age of this important legislation.
The MHCAT Act replaced the previous legislation, the Mental Health Act (MHA) 1969. I can recall working as a psychiatrist at the time. The MHCAT Act was enacted during a time of sea change in the mental health environment, both internationally and in New Zealand, including deinstitutionalisation and the movement of care to the community, and the explicit intent of endeavouring to treat patients (and their families) in the least restrictive settings possible. The new MHCAT Act was designed to: allow crisis assessment without necessary recourse to hospital admission; increase psychiatrist assessments and the frequency of reviews of patients under compulsory treatment; and encourage processes for the patient to appeal or dispute the need to be cared for under the MHCAT Act.
It seems timely to review and reflect on compulsory treatment in New Zealand over the last two decades. The book unashamedly concentrates on compulsory treatment, and ultimately has a legalistic and human rights focus. The contributing authors met for at least two research meetings, facilitated by the editors, to discuss and improve their contributions to the book. The compiled chapters are a laudable effort by the editors and authors to review compulsory psychiatric assessment and treatment in New Zealand since the MHCAT Act was introduced. It is estimated that compulsion under the MHCAT Act actually pertains to 3000-4000 New Zealanders at any one time. This is much smaller than the total number of patients or service users in mental health who are treated without recourse to the Act.
The first section of the book sets out some of the thorny aspects of “Criteria for compulsion” related to personality disorder, risks, and diminished capacity for self-care within compulsory treatment. The first chapter, by John Dawson, is useful in setting out the background and core issues related to the origins and meaning of “mental disorder”. Sir Aubrey Lewis’s views underpin the described phenomena within the definition of mental disorder that are “part-functions of the mind”. Thus, the words used are “delusions, disorders of mood, perception, volition or cognition”, and the diagnosis of mental illness is not necessary in the early phase of assessment. There are important exclusions relating to merely criminal conduct, intellectual disability or substance abuse. Thus, being socially deviant is not a reason to compel for treatment. Critically, the decision also requires an assessment of the seriousness of risk (either to themselves or others) which, if not serious enough, might prevent proceeding or continuing to compulsion.
This is followed by a section on “Review procedures”, in which the statutory roles of those who have been involved with reviewing compulsory assessment and treatment under the Act are described. The respective authors present their experience in various roles defined in the legislation in straightforward and pragmatic accounts. In the section, “Cultural and human rights”, authors offer critical appraisal of areas of concern related to: the over-representation of Maori under compulsory treatment (Hinemoa Elder and Rees Tapsell); a consumer perspective (Sarah Gordon); and concerns about social deprivation (Anthony O’Brien), in relation to those with mental illness or under compulsory treatment. The final section of the book touches upon so-called “Collateral legislation”, which could be read as areas where compulsion is most problematic and/or in need of reform – those deemed unfit to stand trial (due to insanity), adults with incapacity (under the Protection of Personal and Property Rights Act), intellectual disability, and those suffering alcoholism or drug addiction (these latter two groups are specifically excluded from the MHCAT Act as sole criteria for compulsory assessment and treatment).
From the outset, the lay reader might be put off by the two pages of defined abbreviations, academic style of footnotes and legal or medical jargon. In addition, as pointed out by the editors, there is the lack of description of compulsory treatment regime and judicial hearings. Apart from clinicians, patients and the legal professionals involved with criminal or mental health, it is unlikely that the average lay person would be aware of the stepped progressive nature of compulsory treatment, with a number of rights and expectations, including the important fact that legal representation and legal ombudspersons (District Inspectors) will visit to ensure that patients’ rights and needs are being met whilst under compulsion. I appreciate that the editors point out these aspects are covered in other books and articles already published elsewhere, but for the general lay person otherwise unfamiliar with compulsory treatment this might have provided some orientation.
I suspect most readers interested in this book will be professionals involved in the field of mental health, lawyers, service users involved in monitoring patient care, and policy advisors. The themes of the book should raise debate and reflection around the nexus of mental health, human rights and the limits of compulsory assessment and treatment in New Zealand. Interestingly, despite the range of perspectives expressed, the authors do not propose major structural change to the Act, and one suspects that there is some acceptance of the overall workings and core tenet of the MHCAT Act. Jeremy Skipworth’s chapter on mental capacity to consent to treatment provides food for thought, about the complexity of assessing patients’ decision-making capacity and rights to refuse treatment under compulsion in civil or forensic settings. The Dawson et al audit of second opinions on compulsory treatment is thought-provoking in its findings and suggestions for standardisation and quality improvement. There seems to be more to be said regarding the limits of guardianship (PPPR Act) in relation to the MHCAT Act, which, in my experience, is becoming a greater challenge with the increasing prevalence of bewildered and cognitively disturbed elderly patients in general hospital and rest homes, rather than in psychiatric settings. The circumstances and decisions around treatment in these patients requires greater flexibility and dexterity than the usual MHCAT Act processes.
In the nexus between health and law, there is an uneasy balance between rights of autonomy, and expectations of treatment and recovery, which at times can be unrealistic bedfellows. I would commend this book to anyone interested or working with patients and families where compulsory assessment and treatment might be a thorny issue in clinical or legal practice.
Dr Charles Hornabrook is a Wellington consultant psychiatrist.