Mental Health (Compulsory Assessment and Treatment) Amendment Bill

I present a legislative statement on the Mental Health (Compulsory Assessment and Treatment) Amendment Bill.

ASSISTANT SPEAKER (Hon Jacqui Dean): That legislative statement is published under the authority of the House and can be found on the Parliament website.

I move, That the Mental Health (Compulsory Assessment and Treatment) Amendment Bill be now read a second time.

This bill amends the Mental Health (Compulsory Assessment and Treatment) Act—the Act known as the mental health Act—and is an important part of the work we’re doing to, initially, improve the Act, to make it more compliant with basic human rights obligations, and introduce some more pragmatic solutions, for example, for the transporting of patients who fall under the Act. But it’s one step along the way to a more fulsome repeal and reform of the current legislation as a consequence of the series of reforms we committed to in 2018 as part of He Ara Oranga.

I want to first of all acknowledge the work of the members of the Health Committee and their examination of the bill, and the small number of changes that they produced as a consequence of their examination and which are now part of the bill as reported back to the House. I want to thank all those who made submissions to the bill. There were over 50 of them, mostly supportive of the bill, and recognising the need for change which is, of course, reflected in it. This piece of legislation, or the legislation that it is amending, is 30 years old. It is timely for it to be closely examined and changed and reviewed. It’s quite clear that the current legislation is out of step with basic expectations of the way people who fall under its aegis should be treated.

The bill focuses on four main changes to the principal legislation: first of all, eliminating indefinite treatment orders; secondly, improving the safety of both patients and the public when transporting special patients, as they’re known for the purposes of the legislation; thirdly, addressing some technical drafting issues that will help to improve the administration of the Act; and then fourthly, removing the sunset clause that had been put in as a consequence of COVID legislation that related to appearances in court by audio-visual technology, which has turned out to be welcomed by many practitioners and, indeed, patients. Following examination by the committee, I think some refinements are made to it so that there are some further protections for the patients who fall under the bill.

In relation to the indefinite treatment orders, this amending bill removes those or eliminates those. It is to be remembered that under the principal legislation as it is at the moment, an indefinite treatment order has no end and no basis on which it is ordinarily reviewed by the court. So this was seen as a very Draconian, very extreme, order to place people under, and so they will go. They’ve been very heavily criticised, and in the many reviews of the legislation by the monitoring agencies, this particular provision has been criticised and it will now go.

In relation to the provisions about transporting patients, this is a recognition that there are some patients who, at the time of being transported between facilities or to and from court, pose greater risk than others, and some need to be managed appropriately in the course of being transported. Currently there is no power or provision in the current legislation to allow restraint techniques to be applied to allow a patient who is at serious risk of harm to themselves or others to be more safely transported. The amendment will now allow steps to be taken for a patient to be safely transported. So, effectively, it gives permission to use appropriate or reasonable force, including restraint, during the transport. There are, of course, safeguards in place. Any force or restraint is to be used only if absolutely necessary.

I won’t go into the sort of technical drafting amendments, because that would bore the bejesus out of anybody at this time of the night, but in terms of the sunset clause for appearances by audio-visual technology as required in the court, that is removed, and I think it was one of the most common subjects upon which submitters made their submissions to the select committee. There are some safeguards put in place to make sure it’s not just used as a convenience, that it is used for a proper reason. So there is now a requirement that practitioners must record the fact that consideration was given to whether or not the audio-visual technology use was suitable in the particular circumstances, and also a record of it—if it was used and why it was used—so that there is a record kept of that. That is then the subject of reporting to the director of area mental health services who then reports that to the Director of Mental Health so that there is some sort of oversight and monitoring of the extent to which this technology is used, and whether or not it is appropriate for the particular patient. So oversight is now part of the regime. Consideration was given about public reporting requirements in relation to all of this. The committee has recommended that future reporting requirements be considered as part of the broader work of the repeal and replacement work of the Mental Health Act, and I think that is an appropriate thing to do, and it will now comprise part of the work we do on the major repeal of the legislation.

In the end, this is about making sure that this piece of legislation, which has courted controversy from time to time, is fit for purpose. It is part of the overarching mental health reforms that this Government is committed to doing, because, as we said from the outset—and, indeed, just before we were elected—mental health has been neglected for far too long. We must get it right, we must support people, and for those people who are particularly troubled, and a risk as a consequence of their mental health, we need to make sure that in terms of the legislation that compels them to be committed or detained, or to undergo treatment—whether for forensic purposes or otherwise—their basic human rights nevertheless are respected and are incorporated into the legislative regime that we have. This amending legislation takes one of many steps towards that. There are other steps and bigger steps to take, and that will follow. But, on that basis, I commend this bill to the House.

The question is that the motion be agreed to.

Thank you very much, Madam Speaker. It’s a privilege to rise on behalf of the National Party in support of the Mental Health (Compulsory Assessment and Treatment) Amendment Bill, a bill that seeks to amend the Mental Health (Compulsory Assessment and Treatment) Act 1992, or quite simply called the mental health Act.

I do want to start, if I can, by acknowledging this is Mental Health Awareness Week. Isn’t it great in New Zealand we have this week to talk about an issue that I think is important to most New Zealanders—I’d probably say all New Zealanders—irrespective of their political colours. I think mental health is an issue that we need to ensure we take a bipartisan approach to. I’m very proud to be a founding member of Parliament’s cross-party mental health group that seeks to work collaboratively to make a change. I think it’s great that in Mental Health Awareness Week we are having these conversations. Who would’ve thought years ago you would have had farmers turning up to a woolshed to talk about their own mental health?

I know that you’ll know the National Party is doing their bit. We held our first suicide prevention seminar at our annual conference where we heard from guest speakers like Jason Herrick, who’s attempted suicide himself because of the pressures of farming and rural life. He’s gone on to set up a mental health advocacy, Ag Proud. Of course, we also heard from Grace Curtis, who tragically found her father who had committed suicide. Grace has gone on to set up Cool Change NZ, a young person’s mental health advocacy group. So through great tragedy and hardship in New Zealand we see the green shoots of people wanting to take responsibility and promoting better mental health in New Zealand. I’m sure that’s supported the whole way round the House.

This bill, as the Minister outlined, is a fairly technical bill. It seeks to end indefinite treatment orders, specifically orders that had no end date and weren’t to be reviewed by the courts. Now, under this bill, the orders will be reviewed every 12 months. Sadly, for some people with severe and lifelong enduring mental illness, they will be under some order or care for a large part of their life. But I think it’s quite right to review every 12 months to understand how we can do better to supporting people to stay well. We do know now, with the recovery model, that if we put a person with lifelong and severe mental illness at the centre of their care, they do know what can keep them well. It is up to us to support them with the resources they need to keep them well and carry on being productive members of an inclusive society.

The second part of this bill seeks to allow transport management plans for restraint for mental health patients. It also seeks to use technology. This is a second reading debate so this bill has been to a select committee. We had a number of submissions, no wholesale change, just some amendments, primarily around the use of audiovisual links (AVL). So it’s important we use technology, and under this bill we can have friends and family who can be part of assessment as well. Also, under the COVID orders we allowed AVL to be used for assessment of patients under treatment orders as well. This bill will allow that AVL use to continue. But there was quite a theme coming through the submitters which was that we wouldn’t want the use of audiovisual to be the default setting of assessing people in their time of need for what specialist care they might need. Of course, it should be face to face, and at all times we should be looking to include friends and family in that as well. But, as COVID has taught us, it’s not always practicable to be able to do that in person, and I think it’s a great step forward to be able to use technology such as AVL to ensure that people get timely access to care.

One change that has been made is to ensure that through the guidelines and the guidance that will go with this new bill once it’s enacted into legislation, practitioners will be required to record whether AVL has been used and their reasons for it, and that will actually be reported up to the Director of Mental Health, who then will be reporting at a macro level around the use of technology in people’s care. Quite rightly, we want to use technology to support people’s care, but, equally, we don’t want to overstep and have a default where technology and AVL is used to the detriment of the person’s care and treatment.

What was very interesting, that also came out from submitters, was this reference—and the Minister did say—that this is part of a wider programme. Of course, the Government kicked off the mental health inquiry over three years ago. There were 40 recommendations; the Government accepted 38 of them. One of them was around repealing and replacing the mental health Act. Sadly, we are still no closer to that. We did put some wording in the select committee commentary report which, hopefully, reflects the concern of the submitters, who are concerned about the pace of the repeal and replacement of the mental health Act, because when we asked the officials, they told us that, when they’re looking at the timing of the work, the preliminary consultation is under way and formal consultation is expected to begin by the end of 2021. I mean, we are now going to be three, 3½—next year will be four years since those recommendations were accepted by the Government, and to say that this bill is the start of a process of repeal and replacing something that even the Minister’s officials have accepted has not formally started is, I think, a long bow.

We have seen that—because, of course, last week the Government announced their 10-year strategy—parts of these changes will feed into the strategy around the recovery model and using technology, but really disappointing with their own, independent review. Of course, it was an interesting choice of words to call it an independent review, but the health Minister gave it to his colleague the Deputy Prime Minister to review in his implementation unit, and they came out with words like “strong progress” and “initiatives are on track”. Well, we clearly see by the comments of submitters in this bill that, after three years of promising to repeal and replace the mental health Act, the work hasn’t even started. I think Shaun Robinson, who’s been very outspoken, as he should be as the CE of the Mental Health Foundation—he speaks on behalf of people with lived experience—called the comments of “strong progress” and “initiatives on track” as spin. And I think we should probably call it for what it is.

The reality is that this bill, although it’s well timed for Mental Health Awareness Week—you know, it starts to say the right things, a few more slogans, and starting the work around replacing and repairing the mental health Act, but the reality is that things are very slow. It’s a stocking filler. It’s a nice-to-have bill, but it’s very small, it’s very technical, it’s very perfunctory, and the reality is, I think, very clear from my colleagues across the House, whether it be Chlöe Swarbrick in the Greens, that we would have liked to be here today debating the replacement of the mental health Act, as promised by the Government when it accepted that recommendation over 3½ years ago, because the time has come to take a more person-centred approach to mental health, and that should also be in the compulsory treatment Act. And that’s why I would encourage the Government to bring to the House the repeal and replacement of the mental health Act that they promised those thousands of New Zealanders who turned up to their mental health inquiry, often telling very personal and traumatic stories that ended up in those 38 recommendations, which we now know many aren’t in progress and aren’t on track. Thank you, Madam Speaker.

💬 Dr Liz Craig: Madam Speaker?

With apologies to the member, this debate is interrupted and set down for resumption on the next sitting day. The House stands adjourned until 2 p.m. tomorrow. Good evening.

Debate interrupted.

The House adjourned at 9.57 p.m.