The Health Committee has examined the Mental Health Bill and recommends that it be passed. We recommend all amendments unanimously.

This bill would repeal and replace the Mental Health (Compulsory Assessment and Treatment) Act 1992, which sets out when people may be subjected to compulsory psychiatric assessment and treatment and provides for their rights.

The bill’s purpose, as set out in clause 3, is to provide for compulsory mental health assessment and care in a manner that:

• promotes a person’s decision-making capacity, including while they are subject to compulsory care

• improves equity in mental health outcomes by striving to eliminate mental health care disparities, in particular for Māori

• protects rights

• protects safety and well-being.

Clause 6 proposes a set of principles for compulsory mental health care. The principles would apply to courts, tribunals, and people performing or exercising functions, powers, and duties under the legislation. They cover:

• Therapeutic purpose—compulsory care should only be used to protect, promote, and improve a person’s mental health, and only if suitable care is available to do so.

• Least restrictive application—compulsory care should be applied in the least restrictive manner. This includes a preference for voluntary care, the use of compulsory care for no longer than necessary, and ensuring that support is available to reduce the need for compulsion.

• Supportive and responsive application—compulsory care should be supportive and responsive. This means encouraging capacity and choice; reflecting the person’s needs; being guided by their will and preferences; and recognising their ties to family, whānau, hapū, iwi, and family group.

Clause 7 sets out the criteria that would have to be satisfied before a person could be subject to compulsory care. The person would have to have seriously impaired mental health that both:

• caused, or was likely to cause in the near future, serious adverse effects in the absence of care

• caused the person to lack capacity to make decisions about their own mental health care.

Part 2 of the bill provides for:

• the making of advance directives to set out a person’s care preferences in the event that they ever become subject to compulsory care

• participation in decision-making and hui whaiora (well-being meetings)

• support networks including a nominated person to represent the interests of a person if they become subject to compulsory care

• roles of independent support persons and advocates

• rights, and complaints.

Part 3 deals with compulsory care requirements and assessments and mental health care orders. Part 4 provides for forensic and restricted care (for people who pose an unacceptable risk of seriously endangering the physical or psychological safety of others).

As part of our consideration of the bill, we have examined its consistency with principles of legislative quality. We wish to bring the House’s attention to some issues relating to clauses 202(1)(b) and 219, which we discuss in more detail later in this commentary.

This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss minor or technical amendments.

Clause 3(c) states that the bill’s purpose includes protecting the rights of tāngata whaiora. We think the focus should be on ensuring that appropriate safeguards are in place for the use of compulsory care. To make this clearer, we recommend changing “protects” to “safeguards”.

We also think clause 3(d), which sets out whose safety and well-being the bill seeks to protect, should be amended. It should recognise tāngata whaiora as part of a collective that includes their whānau and their community. We recommend amending paragraph (d) by replacing “all other New Zealanders” with “their communities”.

Clause 4 contains various definitions that include the word “patient”. Some submitters felt that this word reflects a paternalistic approach to care and reinforces power imbalances between tāngata whaiora and mental health professionals. We considered various options for replacing the word “patient” and opted for “person under compulsory care”. For “inpatient” and “outpatient” we chose words emphasising the location of their care: in hospital and in the community, respectively. For “voluntary patient” we chose language to reflect that they are consumers of health services.

We recommend making the following changes in the bill:

• replace “patient” with “person under compulsory care”

• replace “forensic patient” with “person under forensic compulsory care”

• replace “Forensic Patient Review Tribunal” with “Forensic Mental Health Review Tribunal”

• replace “inpatient” with phrasing that reflects a person cared for in a hospital, such as “person subject to a hospital care order”

• replace “outpatient” with phrasing that reflects a person cared for in the community

• replace “restricted patient” with “person on a restricted order”

• replace “voluntary patient” with “voluntary mental health consumer”.

Clause 4 as introduced would define “principal caregiver” as a friend or family or whānau member who is most evidently and directly concerned with oversight of the person’s care and welfare. We consider that the phrase “principal caregiver” could be confusing and does not accurately reflect this person’s role. We recommend replacing it with “primary support person”.

Clause 6(1)(c)(iii) provides for compulsory care to be delivered in a manner that is responsive to, and guided by, the person’s will and preferences. We want the bill to be very clear that this provision includes a person’s will and preferences as expressed in any advance mental health directive, including interventions they express as interventions of last resort. We recommend amending clause 6(1)(c)(iii) to make this explicit.

We note that clause 3(a) sets out the bill’s purpose of promoting the decision-making capacity of tāngata whaiora. We consider that clause 6—which sets out the compulsory care principles—should also include a focus on this. We recommend inserting a new compulsory care principle, “Dignity of risk”, to recognise the right to take reasonable risks to achieve personal growth, self-esteem, and quality of life.

Clause 7 sets out the criteria that would have to be satisfied before a person could be subject to compulsory care. In clause 7(2), which defines “serious adverse effects”, paragraph (c) would require “serious deterioration in a person’s mental or physical health”. We do not think it is clear enough that the “person” in paragraph (c) is the person under assessment. We recommend changing “a person” to “the person” in clause 7(2)(c).

Clause 8 defines “seriously impaired mental health”. Subclause (2) sets out certain factors that could not be the only reason a person was assessed as having seriously impaired mental health. The factors are largely carried over from the current Act.

The word “solely” means that, while items in the list in subclause (2) could not be the only reason, they could still form part of an assessment of seriously impaired mental health. However, we consider that two items in the list should never be part of an assessment that a person has seriously impaired mental health: sexual orientation and gender identity. We recommend amending subclause (2) to exclude these two items from any such assessment. The others could be factors in an assessment of seriously impaired mental health, just not the sole basis of the assessment.

We note that the bill as introduced uses the phrase “sexual preferences”, which is carried over from the current Act. We consider the phrase outdated and recommend replacing it with “sexual orientation”.

Clauses 12 to 15 provide for “compulsory care directives”, which are advance directives that allow a person to set out their care preferences in case they ever became subject to compulsory care. We recommend changing the directives’ name to “advance mental health directives”. In our view this name would help to reduce confusion with other advance directives a person may have, and the stigma associated with compulsory care and barriers to promoting and encouraging the making of directives.

Clause 13(2) sets out the help that would be required from the mental health practitioner assisting a person to make an advance mental health directive. We recommend amending the subclause to be more specific. Our paragraph (a) would also require the practitioner to inform the maker of the purpose and effect of the directive, including its legal effect if the maker should ever be subject to compulsory care.

Under clause 14(1), directives must be witnessed by a person acceptable to the maker. We recommend inserting two further requirements: witnesses should be 18 years of age or older, and they should not themselves be subject to compulsory care.

We make several recommendations about the rights set out in Part 2, subpart 4.

Clause 6(1)(c)(iv) would require people performing a function or duty or exercising a power under the bill to recognise the importance and significance of a person’s ties to their family, whānau, hapū, iwi, and family group and the contribution those ties make to well-being. However, the bill does not expressly refer to newborn babies being separated from their birth parent. We consider that the bill should explicitly provide that birth parents not be separated from their newborn babies unless specific circumstances apply.

To this end, we recommend adding clause 38A into the bill. Subclause (1) provides that a person under compulsory care in a hospital who is a birth parent is entitled to have their baby remain with them in hospital unless a legal guardian of the baby agrees to the separation, or the practitioner responsible for the person considers that the separation is in the best interests of the person or the baby. Subclause (2) sets out notification requirements when a birth parent is separated from their baby.

Clauses 39 and 40 provide a complaints process for a breach of rights. Under clause 39, complaints would be investigated by a district inspector or an official visitor. Under subclause (5), if they were satisfied that a complaint had substance, they would have to report it to the Director of Area Mental Health Services to put things right. Under subclause (7), if they considered that their recommendations had not been satisfactorily addressed, they could report the matter to the Director of Mental Health. We recommend amending subclause (7) to make this reporting mandatory rather than optional.

Seclusion is the placing of a person alone in a room or area, at any time and for any duration, from which they cannot exit freely. Clause 49 seeks to provide for the reduction and elimination of seclusion.

Clause 49(1) would require every person performing a function under the bill to use their best endeavours to eliminate the use of seclusion. To elevate the importance of this duty, we think it should be placed on the person in charge of the service. They should also be required to demonstrate the steps that they have taken to reduce and eliminate seclusion by reporting each year to the Director-General of Health. We recommend amending subclause (1) and inserting subclause (1A) to reflect these changes.

Clause 49(2) should contain only the threshold for the use of seclusion, as set out in paragraph (b): people should not be placed in seclusion unless necessary to prevent an imminent risk to life when all other less restrictive strategies and approaches had been tried without positive effect. Clause 49(2)(a) of the bill as introduced—that seclusion should be used only for as long as necessary to ensure the safety of people accessing the service, staff, or others—would sit more appropriately in the list of requirements for seclusion at clause 49(3)(b). We recommend moving it to be new subparagraph (iiia).

The Ministry of Health informed us that electroconvulsive therapy (ECT) can be an effective treatment for depression, mania, catatonia, and other serious neuropsychiatric conditions. It said ECT is typically reserved for when previous modes of treatment have not been successful.

Under clause 50(1)(a) and (b), ECT could not be given to an adult unless one of the following conditions was met:

• the adult had capacity to consent, and did so in writing

• an advance mental health directive was in place approving the use of ECT

• the adult lacked capacity to consent and a second opinion from an appropriately qualified mental health practitioner appointed by the Mental Health Review Tribunal considered that the use of ECT was in the patient’s interests.

We consider that several provisions should be added to ensure that ECT is only used in appropriate circumstances. Our recommendations are as follows:

• Advance mental health directives that object to the use of ECT should only be able to be overridden in an emergency. In such cases, the independent second opinion from a psychiatrist with expertise in ECT should also have to be sought. We recommend reflecting this by inserting paragraph (i) into clause 50(1)(b).

• The provision of ECT should take into account the person’s care plan. We recommend inserting this requirement in subclause (1)(b)(ii).

• The requirements for children (under 18 years old) are set out in clause 50(1)(c) and (3) of the bill as introduced. As an extra protection, we think that two second opinions should have to be sought. One would be from a child and adolescent psychiatrist and one from an appropriately qualified psychiatrist with expertise in ECT. We recommend moving these provisions to new subclause (1A).

• Not all mental health practitioners should be able to provide second opinions about ECT, just psychiatrists. We recommend changing references to “mental health practitioner” to “psychiatrist” in clause 50(1)(b) and (1A).

• The second opinion psychiatrist should be required to have expertise in ECT. We recommend setting this out clearly throughout clause 50.

• Subclause (2) sets out the requirement to record the use of ECT. In our view, the record-keeping requirements for ECT should be the same as those for reporting the use of emergency care under clause 48. We recommend amending subclause (2) to align the ECT reporting requirements with those in clause 48.

• We think that one further safeguard should also be created to make clear that ECT must only be used in appropriate circumstances. We recommend inserting clause 190C to create an offence of failing to comply with clauses 50(1), 50(1A), or 50(2).

Clause 51 provides for restricted treatments, as defined in subclause (2). Under paragraph (a) they include treatments intended to destroy part of the brain or brain function. Under paragraph (b) they could be any other treatment specified in regulations.

The Regulations Review Committee wrote to us about paragraph (b). It said that the regulation-making power in paragraph (b) is so broad that its scope and intent are uncertain and it would give the decision-maker too much discretion. It pointed out that the provision would allow any treatment to be made a restricted treatment. It suggested that we consider amendments to provide the reasons why a treatment should be made a restricted treatment, and upon whose recommendation one should be made.

We understand that the regulation-making power in paragraph (b) is to allow for emerging or future treatments. We consider that paragraph (b) should state more clearly that it applies to emerging or higher-risk treatments. These practices may have benefits for some people, but if they are listed as restricted treatments via regulations they would be subject to the additional safeguards in clause 51. We recommend amending clause 51(2)(b) to reflect this.

In our view, only a psychiatrist, and no other mental health practitioner, should be able to give a second opinion on a proposed restricted treatment. We therefore recommend changing wording in clause 51(1)(c)(ii) from “mental health practitioner” to “psychiatrist”.

Under clause 53(1), a person would have to be immediately released from compulsory care if the responsible practitioner considered that they no longer met the criteria. If they did not consider so, but a district inspector, an official visitor, or a member of the person’s support network disagreed, the matter would be referred to the Mental Health Review Tribunal under clause 53(2).

We note that clause 81(4) already enables people’s support networks to seek review of these decisions at each 3-monthly status review. We think that also allowing the support network the review pathway in clause 53 could cause confusion. Also, if many reviews were sought under clause 53 instead of under clause 81, the right to have a matter considered in a reasonable time could be affected. We recommend removing the person’s support network from clause 53. The district inspector or the official visitor could still seek a review under clause 53, while the support network could do so under clause 81.

Several clauses require a decision-maker to have reasonable grounds to believe that a person meets the compulsory care criteria. This qualifier is appropriate for an examination and first assessment, but we do not think it is appropriate after a person’s second assessment. We consider that decision-makers should determine whether the patient meets the compulsory care criteria at the following times:

• the end of the second assessment

• when an order is made by the court

• at status reviews

• at the end of an order before a new application is made

• for any subsequent court determinations.

At these points in the process, the threshold should be higher than “reasonable grounds to believe” and the decision-maker should be able to determine outright whether the patient meets the criteria. We therefore recommend removing the “reasonable grounds to believe” qualifier from clauses 53, 65, 67, 76, 80, 81, 85, 86, 88, 135, 137, 139, 142, and 143.

Clauses 54 to 68 cover the initial compulsory assessment and care processes, which include:

• an examination and application for first assessment

• a first assessment of up to 6 hours, completed by a mental health practitioner

• a second assessment of up to 19 days, with reviews on days 5, 12, and 19, where compulsory care can also occur.

Clause 70 provides for all applications under the bill to be heard and determined by the Family Court unless otherwise provided. Under subclause (3), if an examination is required, it must be done by a Family Court Judge. Subclause (4) would allow examinations by a District Court Judge if this was not practicable. We recommend an amendment to make clear that subclause (4) would apply despite subclause (3).

Clause 86(2) provides for the extension of mental health care orders “for a period of 12 months”. We recommend amending this to make clear that an extension could be for any period of “up to” 12 months.

Under clause 87, courts would have 2 months to determine an application for an extension of a mental health care order under clause 86. The time allowed for the court to make its decision should be no longer than necessary, because the person would remain under compulsory care pending the outcome of the application. However, we heard that extra time could benefit people wishing to seek a second opinion. In our view, allowing the court to extend the time by up to 1 more month for the benefit of the person subject to the application would be an appropriate reason for a delay. We recommend inserting subclause (1A) into clause 87 to provide that a Judge may extend the period in which they must determine an application if they receive a request to do so, and the purpose of the extension is to obtain a second opinion in relation to the status review.

Clause 89 sets out leave provisions for people subject to hospital care orders. Under subclauses 2 and 3, they could be granted leave of up to 3 months which could be extended once by up to 3 months.

We think any length of leave should be granted to an inpatient, as long as it is clinically appropriate. We also think that the responsible practitioner, when deciding to grant leave, should also consider whether the hospital care order was still appropriate. We recommend amending clause 89(2) and (3) to reflect this.

Forensic compulsory care is for people transferred from the justice system to the health system. The bill would carry over existing processes that enable these people to receive mental health care in a secure environment.

Clause 142 sets out how to appeal a Mental Health Review Tribunal decision that a patient meets the compulsory care criteria. Clause 176 sets out how to appeal a decision of the Forensic Mental Health Review Tribunal. Appeals under both clauses would be made to the High Court. However, we think the Family Court is a more appropriate forum and has expertise in mental health matters. We recommend changing the High Court to the Family Court in clauses 142 and 176.

Clause 182 sets out the powers of a constable if a person was found in a public place acting in a manner that gave the constable reasonable grounds to believe the person met the compulsory care criteria. Although we heard concerns that the police may not be able to decide whether a person meets the compulsory care criteria, we do not consider it appropriate for police to apply different criteria than other professionals operating under the legislation. This is particularly important because police would have significant powers under clause 182. They could detain and take a person to a hospital.

We think, however, that the threshold in clause 182(1) should change. We recommend amending clause 182(1) so that the powers would apply if the person’s actions gave the constable reasonable grounds to “suspect” that the person “may meet” the compulsory care criteria. We also recommend inserting subclause (1A) to make clear that the constable would not have to make a medical assessment or clinical judgement about a person. If the police needed help understanding whether a person met the compulsory care criteria, they could seek it from an authorised person under clause 178. We recommend setting this out in our new subclause.

We recommend a parallel change to clause 187, which would provide a similar power to nurses in hospitals.

Clause 184 provides for the situation when person may need to be sedated urgently. Subclause (3)(a) would require the circumstances of the sedation to be recorded. To ensure consistency between the bill’s recording requirements for restrictive practices, we recommend amending paragraph (a) to require the information to be recorded in accordance with clause 206(2).

We have previously discussed the new offences set out in our proposed new clauses 190A, 190B, and 190C relating to communication and mobility aids, and the use of ECT.

We recommend modernising the language in clauses 191(2)(b) and 192(2)(b) from “conspire” to “intentionally assist”.

We think that clause 208, which covers the giving or sending of documents, should be clearer, and recommend removing subclause (5) to do this. Subclause (6) is sufficient. It is clearer and is consistent with other electronic transaction provisions.

Clause 215 provides for the use of audiovisual technology by people working under the legislation. We consider clause 215 too subjective in requiring Person A’s opinion. We note that in-person attendance should be the default. We recommend removing the phrase “person A considers” from subclause (2) and inserting paragraph (aa) to ensure that the views of Person B have been considered.

Clauses 99 and 216 provide for the use of audiovisual links in courts and tribunals. We think that these provisions would be clearer if the two clauses were combined. We recommend removing clause 99 and amending clause 216 to provide generally for when audiovisual links could be used by a judge or member of a tribunal to examine a person under compulsory care. The person’s views would have to be considered and it would have to be impracticable for the person to be physically present for the examination.

Clause 217 provides for the transfer of people under compulsory care from one service to another. We wish to make clear in the bill that children and young people could ask for a support person to accompany them when transferring.

Under Right 8 of the Code of Health and Disability Services Consumers’ Rights, every consumer has the right to have one or more support persons of their choice present, except where safety may be compromised or another consumer’s rights may be unreasonably infringed. We feel this should be made explicit for young people in relation to transfers.

We therefore recommend adding subclause (6A) to clause 217, to provide that a person under 18 years old may request that a support person accompany them. Their request could not be unreasonably denied, as set out in Right 8 and confirmed in our paragraph (b) of new subclause (6A). Similarly, we recommend inserting subclause (4A) into clause 112 to provide the same rights to forensic patients under 18 years old.

We have two more minor recommendations to clause 217. Under subclause (5), transfers would have to occur within 14 days after the making of the direction to transfer. We recommend removing subclause (5) and incorporating it into subclause (2). We also recommend amending subclause (8) to include the person’s care plan in the list of documents that would be transferred with them.

Clause 219 sets out requirements for people under compulsory care leaving New Zealand. If the Minister was satisfied that the person would benefit from removal, they could direct that the person be placed outside New Zealand. Clause 219 is based on section 128 of the current Act. We understand that section 128 can be used when a patient has family in their country of origin who can provide care for them, and that is the preference of the patient and their family.

As part of our legislative scrutiny of the bill, we have identified that the Minister’s powers should align better with ministerial powers elsewhere in the bill. Clause 219 could also better reflect how the current provision works in practice. We recommend amending subclause (1) so that the Minister, before authorising the person’s removal from New Zealand, must:

• consider advice from the Director of Mental Health

• be satisfied that it was appropriate for the person to be removed from New Zealand.

We recommend inserting subclause (1A) to specify that the Director’s advice must be about:

• the will and preferences of the person

• the views of their support network

• the care that they would receive once removed from New Zealand

• any other matters that the Director considered relevant.

If the person was under forensic compulsory care, subclause (3) of the bill as introduced would also require the agreement of the Minister of Corrections. We recommend removing subclause (3).

Section 34D of the Mental Health (Compulsory Assessment and Treatment) Act 1992 facilitates patients consenting to an extension of their compulsory treatment order. Applications for extensions may be determined without a formal court hearing and without the patient being examined if they have consented to the extension on the advice of a solicitor.

We recommend inserting new clause 6 in Schedule 1 (Transitional, savings, and related provisions) to change the word “solicitor” to “lawyer” in section 34D. That would allow both barristers and solicitors to advise patients.

We also recommend amending clause 2 of the bill so that the amendment to section 34D would come into force on the day after Royal assent. The rest of the bill would commence on 1 July 2027.

The Green Party and Te Pāti Māori welcome the Government’s commitment to reforming mental health legislation for the transformation we know is urgently needed. We acknowledge the work of the select committee in moving the legislation toward a more rights-based, health-centred approach that reflects the aspirations of He Ara Oranga. This bill represents an opportunity for us to embrace a vision of transformation and to align more closely with a health-based model of care.

However, while we support the overall direction of the proposed changes, we believe that further adjustments are needed to fully align the legislation with a rights-based approach. The Green Party and Te Pāti Māori are particularly concerned that vulnerable groups, such as children, disabled people, and those who have faced systemic discrimination, may not receive the full protection and support they require under the current draft.

To fully deliver on the promise of reform, we believe further amendments are essential in key areas.

The bill as currently drafted provides a more nuanced approach to dealing with the circumstances under which people may be subjected to compulsory psychiatric treatment than the current Mental Health Act 1992. However in our view it is a wasted opportunity to improve equity, protect rights, modernise decision-making, create a participatory framework for tāngata whaiora and advance New Zealand’s commitments under international human rights treaties.

We agree with evidence that the bill treats capacity as narrow, reductionist, and binary especially with intermittency retaining the same loose meaning as the 1992 Act, with no time parameters around the relationship of capacity and non-capacity or requirement for any diminishment of capacity to be imminent.

The bill is complicated with regards to how and by whom decisions about capacity are made. Many times clauses must be cross-read with multiple other clauses to determine whether a condition, power or exception applies, making the decision-tree overly complex for those on the frontline. The flow diagram in Schedule 1 is useful and we would have liked to see more of these to clarify the different journeys from compulsory care to compulsion being lifted, with the decision gates and thresholds clearly shown, along with review and appeal gates and timelines.

Significantly, the bill omits any legislative requirement to plan or resource a more human-rights based approach leaving it vulnerable to tick-box measures rather than real implementation. We also agree with evidence that more explicit strengthening of safeguards would lift the bill closer to its stated purpose, and we would welcome any late amendments that would achieve that.