Human Rights, Constitutionalism and Mental Health Law in New Zealand

John Dawson

Professor, Faculty of Law,

University of Otago

Dunedin, New Zealand

IALMH Conference,

Padua, June 2007

Factors influencing the rate of use of CTOs

• Additional authority conferred to treat outpatients

• Adequacy of community services available• Administrative burden imposed on clinicians• Perceived harm caused to therapeutic relations• Exposure to liability for conduct of the patient

in the community

Human Rights in New Zealand

• No entrenched ‘written constitution’• A party to international HR treaties: eg, ICCPR• Not a party to the ECHR• NZ Bill of Rights Act 1990: an ordinary statute• Anti-discrimination legislation• A statutory code of patients’ rights• Independent judiciary and legal profession • Ready access to courts and tribunals

In New Zealand

Human rights principles strongly influence:• the design of legislation• development of the common law• interpretation of open-textured legal terms• the exercise of administrative discretion

BUT : no bill of rights as ‘supreme law’: no judicial review of legislation

New Zealanders’ attitudes to the constitutionally entrenched human rights:

why so sceptical ?

• A majoritarian, egalitarian political culture• A generally positive view of the state • Distrust of greater judicial power• Prefer codified rules to open-textured principles• Do not accepted that judicial review of

legislation is necessarily required (or effective) to protect human rights.

>>> a preference for ‘the dignity of legislation’.

New Zealand Bill of Rights Act 1990

• Affirms rights protected by the ICCPR• Incorporates these rights into NZ law• An ordinary statute of the NZ Parliament• Not ‘supreme law’ • Does not prevail over other legislation• A guide to interpretation and use of discretion• Preserves parliamentary supremacy• All the courts’ usual remedies are available,

except judicial review of legislation.

The ‘dignity of legislation’

• Parliament takes responsibility for human rights

• A more pluralistic law-making forum

• More accessible to interest groups

• A wider set of information and argument

• Promotes flexibility and compromise

• Avoids hard cases making bad law

Unentrenched human rights still influence NZ mental health law

Waitemata Health v Attorney-General [2001] NZFLR 1122 (NZCA)

concerning the legal standard governing the discharge of compulsory patients under

NZ's Mental Health Act.

A compulsory patient shall be released when:'no longer mentally disordered and fit to be released’.

The NZ Court of Appeal's decision on the meaning of the discharge standard

[N]o standard against which an additional judgment of "fitness" is to be made is contained in the Act. Such wide power to detain for reasons of public interest is inconsistent with the careful scheme of the Act and its respect for the human rights of those subject to its provisions. In application it would raise the risk of potential conflicts with the provisions of the New Zealand Bill of Rights Act, particularly the right recognised by s 22 not to be arbitrarily detained.

Major Variations in Rate of Use of CTOs

People under CTOs per 100,000 population

Victoria, Australia (2005) 60District of Columbia (2004) 54New Zealand (2003) 44Queensland (2004) 43Maricopa County, Arizona (2004) 31Western Australia (2004) 10Tennessee (2004) 10Ontario (2003) 2

S Lawton-Smith, A Question of Numbers,King’s Fund, London (2005)

Community Treatment Powersunder NZ’s Mental Health Act

• a duty placed on the patient to accept treatment• patient to accept visits and attend appointments • power to direct the ‘level’ of accommodation• CMH team may enter private premises at

reasonable times, for treatment purposes• swift recall to hospital by responsible clinician• police assistance in that process• treatment without consent in a hospital or

properly staffed clinic• no ‘forced medication’ in community settings.

Mental Health (CA&T) Act (NZ) 1992, Section 29(1)

The CTO:‘shall require the patient to attend at the patient's place of residence, or at some other place specified in the order, for treatment by employees of the specified . . . service, and to accept that treatment.’

>>> as directed by their Responsible Clinician.

The power of entry conferred by a CTO in NZ

Section 29(2) MH(CA&T) Act 1992 (NZ)

‘Every employee of the service … who is duly authorised to treat the patient may, at all reasonable times, enter the patient’s place of residence or other place so specified for the purpose of treating the patient’.

Victorian CTO Guidelines (2001)

“It is not acceptable to use physical force to impose treatment in any community setting.

“Similarly, it is not acceptable to use the presence of others (especially Police) to coerce a person to take treatment in the community.

“If such a degree of force or coercion is considered necessary … the [order] should be revoked, whereafter the person must be admitted to an inpatient unit.

“This allows … reconsideration of their clinical state, treatment needs, and treatment regime”.

Community Treatment Powers in New South Wales

Mental Health Act 1990 (NSW), section 146

Clinicians may ‘enter the land, but not the dwelling’ of the patient, to facilitate treatment.

Medication may be administered in community settings without consent:‘if it is administered without the use of more force than would be required … if the person had consented’.

Mandatory information-sharing with involuntary patients’ families under NZ’s MH legislation

Clinicians must consult & inform the patient’s family:• during compulsory assessment and treatment• when compulsory status is extended or reviewed

unless, after consulting the patient, this is not considered in the patient’s ‘best interests’.

Clinicians may inform family of impending discharge; and must do so when the family has been victimised.

The family have a right to appear at formal hearings.

These provisions trump the patient’s usual privacy rights.

European Convention on Human Rights, Article 8(1)

‘Everyone has the right to respect for his private and family life, his home and his correspondence’.

Canadian Charter of Rights and Freedoms, Section 7

‘Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice’.

‘Justified Limitations’ on Rights

Canadian Charter of Rights and FreedomsSection 1

‘[This Charter] guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.

Discussion

• The final content of the law in NZ and Australia is determined by Parliament

• Human rights principles are very influential

• Compromises are reached between interests

• Enforceable CTO regimes have been enacted

• Clinicians, families have confidence in them

• CTOs are the preferred form of ‘leverage’• Other forms of ‘leverage’ are less used:

eg, mental health courts, adult guardianship

• This model may not suit constitutionalised systems.