Action - Explore how the Mental Health Act relates to the Bill of Rights Act and the CRPD

9. Priority: Increase government services’ responsiveness to disabled people

9 D: Explore how the Mental Health (Compulsory Assessment and Treatment) Act 1992 relates to the New Zealand Bill of Rights Act 1990 and the CRPD.

Progress update to September 2018

Status: Complete

Cabinet accepted report on 11 July 2017.

Action Milestones:

Phase 1: Legal analysis of NZBORA, CRPD and the Mental Health Act by 15 June 2016 [completed]

Informed the development of the Mental Health Act and Human Rights discussion document.

Phase 2: Identification of concerns/issues with the Reference Group by 15 July 2016 [completed]

Reference Group meeting held in August 2016. Informed the development of the Mental Health Act and Human Rights discussion document.

Phase 3a: Release of consultation document by 15 August 2016 [completed]

Discussion document released for targeted consultation (approved by Cabinet) on 21 December.

Phase 3b: Consultation with wider stakeholders completed by 30 September 2016 [completed - extended time taken]

Consultation on the discussion document formally closed on 24 February 2017.

Revised timeframes agreed by DPOs (May 2017) [completed]

There was a need to extend the consultation period to ensure as many stakeholders as possible could participate (as it overlapped with the summer holiday period).
More time was also needed to consider the complex issues raised by stakeholders in the consultation process.
Final report and advice/options are due to be completed in July/August 2017.

Phase 4: Analysis of feedback and formulation of advice/options by 30 November 2016 [completed]

Currently in this phase. Reference group meets on 11 May 2017 to consider findings and advise on options/priorities. Report with findings and recommendations to be developed for SOC.

Projection completion: Final report and advice/options by 1 February 2017 [completed]

Lead: Ministry of Health

Others: Reference Group made up of range of key stakeholder perspectives, including: tangata whaiora (including Maori, youth and Pacific); family/whanau; academic and clinical/sector. Also wider stakeholder consultation.

Scope of action

This action is part of a shared result area to promote access in the community, incorporated into Priority 9: Increase government services’ responsiveness to disabled people, following updating of the Disability Action Plan in 2015.

The inclusion of this action in the Disability Action Plan responds to concerns of the United Nation’s Committee on the Rights of Persons with Disabilities (“the Committee”) that the Mental Health Act has been criticised for its lack of human rights principles (Concluding observations on the initial report on New Zealand, October 2014).

1 Contributors/partners with lead – who is involved in this action?

Representatives of Balance Aotearoa will provide initial advice on the design and scope of this action. Balance Aotearoa is a charitable trust which promotes the wellbeing of those affected by mental ill-health through providing information, education, support, training, advocacy and research. It is one of the seven Disabled Persons Organisations that work with the government agencies on the ‘co-designed’ Disability Action Plan.

A Steering Group is recommended to provide leadership and governance for the action. The group will comprise of:

Director of Mental Health, Ministry of Health
Group Manager, Populations Policy, Ministry of Health
A Balance Aotearoa representative

A Reference Group is also recommended to assist the Ministry to gain a broad understanding of how the Mental Health Act interacts with NZBoRA and the CRPD. The Reference Group will be made up of a range of key stakeholder groups (Terms of Reference to be developed).

2 Implementation plan

What is the purpose of this action and how will it be implemented?

The Mental Health Act is part of a broader legislative framework for health in New Zealand, which includes the NZBoRA, the Human Rights Act and the Code of Health and Disability Services Consumers’ Rights. Also relevant are New Zealand’s obligations under international law, including the CRPD. This action seeks to develop a shared understanding, informed by mental health service users/tangata whaiora, of how the Mental Health Act relates to the CRPD, taking into account the broader legal context.

The project will take a phased approach.

I. Phase 1: A legal analysis of the compatibility of the Mental Health Act with the CRPD and NZBoRA.

II. Phase 2: A process of identifying issues or concerns about how the Mental Health Act is administered, with reference to the CRPD and NZBoRA, will take place with the Reference Group, informed by the legal analysis.

III. Phase 3: Development of a consultation paper based on phase 1. Consultation with wider stakeholders.

IV. Phase 4: Analysis of consultation feedback. Formulation of advice and options.

V. Final report and advice/options to the Ministerial Committee on Disability Issues.

3 What is included in the scope of this action?

A legal analysis of the Mental Health Act’s compatibility with the CRPD and NZBoRA.

A collaborative process of identifying any issues or concerns about administration of the Mental Health Act in relation to the CRPD and NZBoRA.

Consultation and engagement with stakeholders on the above, including meetings and a written consultation process.

The development of advice and options for addressing concerns or issues highlighted in the course of this action.

4 What is excluded from the scope of this action?

This action is not a review of the Mental Health Act. Changes to the Mental Health Act are outside the scope of this action.

This action will not include a review or exploration of the system of compulsory mental health assessment and treatment of people who have entered the mental health system through the courts or corrections systems (that is, the forensic mental health framework).

This action concludes when final advice and options have been provided.

5 What are the timeframes for implementation?

Phase 1: Legal analysis of NZBORA, CRPD and the Mental Health Act by 15 June 2016

Phase 2: Identification of concerns/issues with the Reference Group by 15 July 2016

Phase 3a: Release of consultation document by 15 August 2016

Phase 3b: Consultation with wider stakeholders completed by 30 September 2016

Phase 4: Analysis of feedback and formulation of advice/options by 30 November 2016

Projection completion: Final report and advice/options by 1 February 2017.

6 What resources will the lead and partners contribute?

The Ministry of Health will dedicate staff time to work on this action, including staff in the:

Office of the Director of Mental Health
Disability Policy, Policy Business Unit
Health Legal team.

7 What governance arrangements are in place for this project?

Oversight of this project will be provided by a steering group, comprising:

Director of Mental Health
Group Manager, Populations Policy
A representative of Balance Aotearoa.

8 Reporting – key milestones/deliverables

Reporting to DPO and CEs Group on scope and project approach in May 2016.

Regular updates to Office of Disability Issues as required.

9 Impact – what are we trying to achieve?

How will we know if the action has achieved the intended result/outcomes?

There is a shared understanding, informed by service users/tangata whaiora, of how the Mental Health Act interacts the New Zealand Bill of Rights Act and the Convention on the Rights of Persons with Disabilities.

How will these indicators be measured or evaluated?

A report will be produced, and jointly agreed between officials and DPOs that summarises the issues and views explored during the project. The report will include options for addressing areas where gaps or problems have been identified.

10 Evidence base

This project is primarily aimed at gaining a stakeholder-informed understanding of how the Mental Health Act relates to the CRPD and NZBoRA. This will be informed in part by feedback from stakeholder groups and individuals. The following information will also be relevant to the project:

Quantitative data on the use of the Mental Health Act in New Zealand
Advice from sector experts and consumers
Relevant current literature

11 Related work

This action relates to the following Disability Action Plan 2014-2018 actions:

DAP Action 4(a) Ensure disabled people can exercise their legal capacity, including through recognition of supported decision making.
DAP Action (4f) to “undertake a stocktake to identify any legislation that is not consistent with the Convention on the Rights of Persons with Disabilities and explore options to improve consistency (lead).”

The following work (outside of the Disability Action Plan) is relevant to this action:

The Ministry of Health development of new restrictive practices guidelines for mental health services
DHB indicator on the use of section 29 orders for Māori service users
Refresh of Rising to the Challenge: The Mental Health and Addictions Service Development Plan 2012-2017
Equally Well (sector-wide initiative to improve physical health outcomes for people experiencing mental health and/or addiction issues, led by Te Pou)
The refresh of the New Zealand Health Strategy
Substance Addiction (Compulsory Assessment and Treatment) Bill.

Information is also available at: http://www.health.govt.nz/our-work/mental-health-and-addictions/mental-health/mental-health-and-human-rights-assessment

Page last updated: 2.03.2019