Mental Health (Compulsory Assessment and Treatment) Amendment Bill

Fakaalofa lahi atu, Mr Speaker. Thank you. I rise to take a call on this bill. As a new member of the Health Committee, I have to say that I entered at the time when deliberations in terms of finalising the select committee report were taking place. However, fundamentally, what this bill does do is, in essence, it eliminates the need for—and practice of—indefinite treatment orders, which I think is actually a really good thing. I think all members of this House will suggest that as well, because, fundamentally, this piece of legislation deals with a number of vulnerable individuals and members within our society.

There is one particular part of this bill that I do want to reserve my comments for, and it relates to the ability for notices to be served and for communication and hearings to take place by way of audiovisual link (AVL). This bill does remove the sunset clause that exists for that particular provision. While, I guess, like other members in this House, I’ve had an experience in terms of conducting hearings via AVL, they can be very efficient and, indeed, in certain circumstances they can be very appropriate, but the existing law as it currently stands in this particular field actually does not allow for patients in terms of whānau support and encouragement to be supported. So the changes outlined in this proposed piece of legislation do, in actual fact, introduce a sense of flexibility to allow exactly that.

It’s worth noting through the deliberations and questions from officials—and I want to thank the officials for their advice to the select committee. They mentioned that justices of the peace do fulfil some role in some circumstances, often because some individuals simply don’t have the whānau support that’s available to them. But ensuring that this provides for the capacity and, indeed, the capability to have whānau alongside vulnerable members of our community actually means that this field, this practice, is moving in a positive space. So, while that’s one component of the bill, I think it’s indeed a very important one, and I commend it to the House.

Got to get these [Struggles to remove face mask] off without losing my hearing aids, Mr Speaker—

💬 SPEAKER: I know the problem.

—because they’re worth a lot more than what you pay me! If I can get it off—ha, ha!

💬 SPEAKER: Yeah, I don’t have the specs—

You’d sympathise with me, no doubt, Mr Speaker.

💬 SPEAKER: You don’t need to listen to yourself, I find.

Ha, ha! Well, that’s a very interesting point, because, of course, God gave us two ears and one mouth so that we can hear twice as much as we can speak. That’s a famous old saying.

It gives me a deal of pleasure to take a very short call on the Mental Health (Compulsory Assessment and Treatment) Amendment Bill, second reading. It’s a bill that I didn’t sit on the select committee of—haven’t sat on the Health Committee, I don’t think, in my time in Parliament, so an interesting little issue for me to deal with. But, none the less, mental health really, for electorate MPs, and for all of us, in fact, is an extraordinarily, I guess, testing issue, because in New Zealand, for a number of years now, we’ve struggled as a country to come to grips with how we manage many issues round mental health. This Government came to the Government benches in its first term in Government with a promise, I guess, to fix this issue, and they found it more difficult than most, as, indeed, a lot of Governments have. So the issues that come to us through our electorate committee are directly related to a lot of the issues that are proposed in the course of this bill.

It’s a bill we support, but, interestingly for me, the critical issue in this bill is how you get into the mental health system and how you get out of it, I guess. It’s a real challenge, I think, for people in the mental health area, for people who are operating our mental health facilities, and for people who need to access those facilities. If you think about the fact that currently in New Zealand, many people enter the mental health system via the police, which I think is extraordinarily unfortunate because we should have ways of identifying the challenges that these people face and being able to get to them and manage them in a much better manner than we have—and this bill sets out to some extent to try and achieve that.

I think, from that perspective, any progress is good progress. But, of course, the real issue we’ve got in this sector is getting, as we have in many other sectors in New Zealand at the moment, and particularly in the health sector, people who are competent and able to deal with the issues that the mental health and those types of—what would you call them?—issues that are caused by mental health challenges raise, and to get the people that are able to deal with those and manage effectively those patients in a 24-hour-a-day manner. Whether they’re in a facility or whether they’re out in the community, they certainly need to be managed and looked after. It’s a great challenge for us as a country and a challenge that this bill at least starts to, I guess—what would you call it?—address. So, with those few words, I’m happy to say National supports this bill.

I have earrings to contend with, not hearing aids, so thank you, Mr Speaker. I rise to speak on the Mental Health (Compulsory Assessment and Treatment) Amendment Bill. I was a member of the Health Committee, which worked hard on this piece of legislation, and I just want to take a second to add to the thanks of my colleague Mr Utikere to thank the ministry officials and clerks of the committee for all their hard work. I’d also like to thank the 53 submitters, and 15 of those we heard from orally, some of whom have actually been subject to indefinite compulsory treatment orders themselves, so their bravery in coming forward can’t really be understated. So I would like to just acknowledge and thank them.

Of course, one of the key amendments of this bill is the elimination of indefinite treatment orders, which are widely seen to be a significant breach of human rights. Instead, we will be requiring that those are reviewed every 12 months, and that will go some way towards addressing these concerns. Another small amendment I’d just like to quickly nod to is the concerns that were raised by submitters that audiovisual link technology would be seen as the default mechanism and might be used to alleviate pressure on services when staff resources are limited. This has been addressed in this bill, and we’ve also required that reporting will be taking place to the director of mental health services—yes, I’m just checking that I’ve got that correct. I would like to just end by commending this bill to the House. Thank you.

Thank you. I rise as the last speaker for the National Party, in support of the second reading of the Mental Health (Compulsory Assessment and Treatment) Amendment Bill. I did not sit on the Health Committee for this, but I am able to speak premised on having served as a mental health lawyer and also a district inspector appointed under this Mental Health Act.

However, it is interesting how, over the course of time, things eventuate. When I was a candidate for the National Party prior to the 2017 election, I went along to the review that had been led by Ron Paterson, who was a former law professor of mine, was also a former commissioner for health and disability, and he happened to lead the review where their report, He Ara Oranga: Report of the Government Inquiry into Mental Health and Addiction, was released to the public in November 2018. Members of the House, and also those who in the public may be listening in, this amendment bill is a consequence of that review.

The first reading of this bill was on 6 April this year. The second reading commenced on 28 September, and it happened to come before the House at the time when it was the week for mental health. People were speaking about the impact of mental health on our lives, particularly focused on that week, but we know that mental health is not just something that occurs once a week every year; it is a daily incursion for many people, and for many it is also an affliction. During these COVID times, what isn’t reported, and it will prevail and play out in time, is the impact of what has happened with COVID on people’s lives and the mental health consequences that will flow on from that.

The purpose of the amendments in this bill are intended to improve the protection of individual rights and the safety of patients in the public. The bill had been drafted, and, after the first reading, it went before the Health Committee, where there were 53 written submissions and 15 oral submissions spoken to from people’s experiences. Not having had the privilege of listening to that, I have had the privilege of engaging with people who have lived with mental disorders and afflictions for a good part of their life. My job as a servant in the legal forum and arena was to advocate and represent the mental health patients, and then that, in time, transitioned to being what was called a “district inspector”, where the requirement of district inspectors as lawyers was an oversight view to ensure legal compliance with the law. That is touched on, in part, by the amendment to this in terms of reporting—the reporting provisions and the transparency of ensuring that there is accountability in what comes about by way of these amendments.

The amendments, as had been outlined by Minister Little when he addressed the House at the second reading, is that the bill proposes to amend the key factors of eliminating indefinite treatment orders. Now, when we talk about indefinite treatment orders, those are compulsory treatment orders, where the patients are compulsorily, as opposed to voluntarily, detained in a mental health facility. The sequence was that an application would be made and, if the evidence was in support of establishing a mental disorder under the requirements of the Act, an order would be made for an initial period of six months, it would come back for review, and then would have another six months if the court was satisfied based on the clinicians’ evidence, the psychiatric evidence, that a compulsory treatment order was required to sustain for another six months, then after that it would go into an indefinite period of time. This law will ensure that there is accountability by requiring that it is a definite period of time of six months plus six months plus 12 months, not indefinitely.

In the day, again, for the practitioners of mental health, if we were seeking that indefinite status to be dispensed with, it would require an application for what was called a “section 76 review” under the Act. However, that would seldom, not often, occur, because the patients who were under the affliction of a mental disorder were struggling on a day-by-day basis just to cope with living, and the last thing on their mind was to apply for a dispensing of that compulsory treatment order. So this amendment to the Act will go about dealing with that.

There is also a provision there that deals with minimising the risk of harm for the transportation of special patients. A special patient is a patient who has been deemed legally by the court as not meeting the mental competency, and therefore are deemed to be either unfit of mind and not having the legal propensity to be able to make decisions—deemed otherwise insane. Those special patients are always placed into what is called the criminal section of a mental health unit, which is the forensic unit. So this deals with the transportation of the forensic patients who are special patients, from the facility that they are detained in to the court arena for the hearing. It deems that the contracting of the transportation can be to another Government agent—often those will be corrections officers or police who are trained in it—where our health service providers are compromised by time to be able to do that.

Another amendment, of course, is removing the sunset provision, which is deemed a technical amendment, which had been imposed during the COVID-stricken times for the hearing of these mental health matters to be not by physical presence but by the audiovisual links. So these are practical amendments that are being proposed within this bill.

It is interesting, also, that the bill, as had been drafted, presented to the Health Committee on scrutiny, and after hearing submissions from those persons who have been affected by the imposition of the Mental Health Act, giving their contribution that is relevant, the Health Committee decided also to make some adjustments to the bill as had been drafted and presented to them. So that has been outlined by a report that had been submitted by the select committee to the House. And, again, that touches on the use of audiovisual links, the practicality of that for patient assessments and for any court determinations.

The member across the House talked about, in other jurisdictions, the fact that AVLs—the audiovisual links—have become a matter of standard practice now in this day of technology, where there may be bail applications heard from counsel on behalf of prisoners who are no longer required, subject to certain circumstances or conditions being satisfied, for them to be transported out of town to a court house. The audiovisual links are a practicality and they facilitate the application and the due process of the law that meets with the needs of the person who is required to make those appearances and be accountable to the courts. So there are those practicalities.

The Health Committee also talked about the monitoring of the use of that, with requirement of reports to the director of mental health. It hadn’t been touched on in the select committee that that is what the lawyers appointed to the specialist role as district inspectors—our role was to go into the mental health units. I travelled to most of the mental health units within the North Island, and our purpose was to ensure legal compliance by the health practitioners and psychiatrists, with the detention of the mentally disordered patients, and that we would report any anomalies or inconsistencies. So the Health Committee has reported the requirement that this would be covered by the directors of area mental health services and also the director of the Ministry of Health. But just to say that these are areas that district inspectors will look out for, and that is what they are required to do.

So this is an appropriate bill before the House, as I say, supported by the National Party. We are a party that recognises due process and the importance of addressing the needs of our vulnerable within the community. It is very fair to say, endorsing my colleague Ian McKelvie, that mental health and our people who are afflicted by that has become more of a regularity in these COVID-stricken times, and this proposed law, and amendment, is practical, it makes sense, and, in saying that, I totally support and commend the bill to the House.

Thank you, Mr Speaker. One of the most important recommendations arising out of the Government’s inquiry into mental health and addiction was that New Zealand’s mental health Act, which is now about 30 years old, be repealed and replaced, and be replaced with something that reflected modern approaches to human rights - supported decision-making and informed consent. The issue is that given the complexity of these issues, it’s important that we take the time to get this right, but there are a number of issues that we do need to address now, and this bill makes a number of these changes.

One of the most important is eliminating indefinite treatment orders, because I think these are seen widely as a serious breach to human rights because people can be detained indefinitely without access to the justice system. Basically, what the bill does is it requires courts to review the treatment orders every 12 months, and, certainly, the majority of submitters that discussed this when they presented their submissions to the Health Committee were in support of this change.

One of the other important things it does is it makes permanent some of the changes that were brought in in response to COVID-19, and one of those was the use of audiovisual (AV) technology for making patient assessments and examinations. Basically, this legislation is due to expire shortly, but it’s really important that we continue it because I think it’s important for where the physical presence of a patient is not deemed to be practicable. But a number of the submitters raised concerns about the fact that if you just have a default of audiovisual technology, that may mean that many people miss out on some of the benefits of an in-person examination, and so what we’ve put in as a select committee is just a number of protections wrapped around that. So the first one is that practitioners actually have to record why it wasn’t practicable for the patient to be physically present, and then, secondly, is that if you’re going to be using the AV technology, then you need to report back to the director of area mental health services. In that way, we can actually, as a country, keep an eye on the use of AV technology and detect any trends if there are any concerns.

So this is a really important first step in ensuring that our mental health legislation is fit for purpose, and I commend this bill to the House.

Motion agreed to.

Bill read a second time.