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McKillop, Matthew --- "Compulsory Treatment of Non-Dangerous Mental Health Patients in New Zealand" [2010] NZLawStuJl 5; (2010) 2 New Zealand Law Studentsí Journal 329

Last Updated: 24 October 2012


COMPULSORY TREATMENT OF NON-DANGEROUS MENTAL HEALTH PATIENTS IN NEW ZEALAND

MATTHEW MCKILLOP*


Involuntary treatment under the Mental Health (Compulsory Assessment and Treatment) Act 1992 is available where a person has a seriously diminished capacity for selfcare due to an abnormal state of mind. This creates a unique interpretive challenge for Courts, clinicians and the Mental Health Review Tribunal, where the right of an individual to withhold consent to medical treatment may be limited to some extent due to the requirements of effective independent living in the community.

Introduction

The right to liberty of the person has been described as “the most comprehensive of rights and the right most valued by civilised men.”1

To traditional liberal theorists, the only justifiable limitation of a person’s liberty is “to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”2

New Zealand’s primary mental health legislation, the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MH(CAT) Act), provides for compulsory treatment where a person poses a serious danger to the health or safety of himself or others due to a mental disorder. Many jurisdictions go no further than this: the United Kingdom Mental Health Act of 1983, for example, provides for compulsory treatment on these grounds only.3 The policy in such jurisdictions appears to be that once a mentally ill person is no longer a

* Finalist for BSc/LLB (Hons), University of Otago. This is a revised version of an article written under the supervision of Professor John Dawson during a research scholarship in January 2010. I would like to acknowledge Professor Dawson’s invaluable input in

helping this article reach its final form.

1 Olmstead v United States [1928] USSC 133; (1928) 277 US 438 at 478

2 Mill, J. S., On Liberty (3rd ed., Norton, 1975) 10-11

3 The criteria for both compulsory inpatient treatment (s 3(2)(c)) and community

treatment (s 17A(5)(b)) require that treatment be “necessary for [the patient’s] health or safety or for the protection of other persons”.

danger to the health or safety of themselves or others, their activities are no longer the concern of mental health service providers.

This is not the case in New Zealand. In addition to patients who present some danger, the MH(CAT) Act allows for compulsory treatment where a mentally disordered person shows a seriously diminished capacity for self-care. Despite the objections of liberal theorists, I hope to show through case studies that such a law is generally justifiable. However, it must be carefully moderated to avoid unnecessary and dangerous encroachment on the autonomy of the person. In this paper I will first assess current judicial thinking on the meaning of “seriously diminished capacity for self-care”. I will then propose an interpretation of the enactment consistent with the patient’s right to autonomy (and the limitations on that right), and discuss how difficult categories of cases might have been better decided by taking account of the rights of the patient and the legal framework of the MH(CAT) Act. I will also compare how diminished self-care is considered under the similar Victorian regime.

A. Current Thoughts on Diminished Self-care

Long-term compulsory treatment of a mental health patient can only be instituted if that person is mentally disordered, according to the definition provided in s 2 of the MH(CAT) Act:

2 Interpretation

(1) In this Act, unless the context otherwise requires,—

Mental disorder, in relation to any person, means an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it—

(a) Poses a serious danger to the health or safety of that person or of others; or

(b) Seriously diminishes the capacity of that person to take care of himself or herself;— (emphasis added)

and mentally disordered, in relation to any such person, has a corresponding meaning

The first ‘limb’ of this definition (ending at the word “cognition”) requires a person to have an abnormal state of mind, characterised by at least one of the disorders of mental function listed. The second “limb” requires that the abnormal state of mind give rise to serious danger to self or to others, or a seriously diminished capacity for self-care. It is the latter part of the second limb contained in paragraph (b) that is the main subject of this paper.

The Mental Health Review Tribunal, constituted under the MH(CAT) Act, is the primary body dealing with reviews of a patient’s condition where a compulsory treatment order is in place, and so has often considered the meaning of “mental disorder”. Paragraph (b) of this definition has consistently presented as particularly challenging. The Tribunal rarely uses the rather awkward phrasing of the MH(CAT) Act, instead preferring the formulation “seriously diminished capacity for self-care”. This paper concerns patients subject to and being assessed for inpatient and community-based compulsory treatment orders made under s 28 of the MH(CAT) Act. It will not consider patients with special patient or restricted patient status.

Whether or not capacity for self-care is seriously diminished has been a question of judgment particular to the facts of each case. It cannot be better couched in other terms, except that there should not be a bright line between “serious” and “minor” as the Mental Health Review Tribunal suggested in the application of TJF,4 but rather a spectrum of diminished capacity on which “serious” somewhere lies. Seriousness of diminished capacity may be assessed on a four-part framework examining the nature of the harm involved, and its magnitude, imminence, and frequency.5

1. Capactiy

More challenging are the meanings of diminished capacity and of self-care. It has long been recognised that diminished capacity cannot be a solely subjective measure;6 were this the case, the very wealthy or intelligent

4 Re TJF (MHRT 07/037) 27 April 2007 at para 26

5 This test is primarily used in assessing serious danger to the health or safety of self or others, but has also been endorsed in the assessment of seriously diminished capacity for self care: Re MG (MHRT 09/009) 6 March 2009 at para 54.

6 Re C (unreported) DC Auckland, CAT 132/99, 28 August 2000, Thorburn DCJ at 9

could feasibly be considered to have reduced capacity due to an abnormal state of mind while living quite comfortably on a severely reduced income, or working happily in an occupation entirely devoid of intellectual pursuits. Given how self-care has been defined (see below), such a reduced standard of living might well impact on the essentials of self-care. Similar dangers are inherent to a purely objective definition of self-care, but at the other end of the scale, where persons with a low normal capacity for self-care might be compulsorily treated for not meeting an agreed minimum common standard.

Capacity for self-care is unique to the individual; the Tribunal often recognises the unique skills and talents of an applicant before it. Despite this, a certain minimum capacity has been generally considered sufficient in all but the most exceptional cases, as there is a “broad commonality” between the minimum capacities of most members of the community.7 In re C, the Court described a mixed objective/subjective test of a “minimum standard of effective self-care for a person of the patient’s circumstances and background.”8 This test has often been adopted by the Mental Health Review Tribunal,9 and is preferable to the apparently subjective test described by the Tribunal in one recent case.10 Fringe cases are most often persons with a below- average capacity independent of any abnormal state of mind, such as those with an intellectual or physical disability, or frailty due to age, rather than those of particular wealth or intelligence.11 These are the people most likely to be negatively affected by a purely objective test. Because the fringe cases tend to concern those people with a low baseline capacity for self-care independent of a mental disorder, I conclude that the Tribunal demonstrates a tendency to favour objectivity over subjectivity. In light of the comparative ability for self- care of those most affected by either test, this outcome appears preferable.




7 Re AVHM (MHRT 08/110) 25 August 2008 at para 39

8 Re C, above n 6

9 Re SC (MHRT 07/135) 13 December 2007; Re JRS (MHRT 08/055) 5 May 2008

10 Re AVHM, above n 7, at para 36

11 I do not have any statistical information that would confirm this view, so I base this assertion on having read approximately 650 Mental Health Review Tribunal decisions.

2. Self-care

Self-care has a long-established definition in Review Tribunal proceedings. It is not limited to the basic necessities of survival (activities of daily living such as food, shelter, hygiene and medication) but includes “the multiplicity of other needs such as achieving financial security, maintaining proper social relationships, maintaining stable accommodation and seeking out...the assistance of others...concerning health and lifestyle.”12 Self-care has been said to embrace all of “the higher complexities of modern living”13 and the “ability to cope adequately in the community.”14

Such a vague definition is more helpfully limited by what it is not, rather than what it includes. Self-care is not simply that which is in the “best interests” of a patient, where he behaves in some way that makes him a nuisance to others.15 Nor does it include provision for “the capacity to find happiness in life and fulfil potential”;16 these are considered to be private and individual matters independent of any mental disorder.

Counter-intuitively, self-care can also be regarded as those essential functions that can be “reasonably readily provided or addressed by others.”17 The degree of outside care available to a patient is a relevant factor in the mental disorder test. Where the support of whanau or friends is present to adequately account for diminished capacity or the risks posed to self or others, a person who is otherwise mentally disordered may be released.18

3. Ambiguous Criteria and Tough Cases

The correctness of the Mental Health Review Tribunal’s interpretation of the mental disorder definition is far from settled. The individual words of the definition each have a multitude of possible meanings,

12 Decision 324/95 (NRT 324/95) 14 June 1995

13 Re AVHM, above n 7, at para 41

14 324/95 above n 12

15 Re SFC (MHRT 2002/032) 4 November 2002

16 Re AVHM, above n 7, at para 42; see also Re TJF, above n 3, at para 13

17 Re AVHM, above n 7, at para 43

18 Re TRT (MHRT 09/078) 14 August 2009

and Tribunal cases are often characterised by contention between responsible clinicians and patients’ counsel as to whether the applicant’s behaviours can be considered to seriously diminish that person’s capacity for self-care. Serious, for example, might mean “significant or worrying in terms of danger or risks” or “more than minor”19 or possibly “not slight”; diminished capacity could require a subjective assessment of the patient’s usual capacities, or an objective view of reasonable capacity; self-care might include the bare essentials of life such as accommodation, sanitation and food, or could include all the ingredients needed for self-actualisation such as relationships and other appropriate social conduct. As I stated above, the meaning of serious is fairly well settled and is not particularly contentious. More problematic are the proper boundaries of diminished capacity and self-care.

The lions’ share of Mental Health Review Tribunal decisions on diminished capacity for self-care are correctly decided, in my view. Normally, some activity of daily living will be clearly impaired due to illness if a patient discontinues treatment. There are, however, tough cases. On several occasions the Tribunal has found a seriously diminished capacity for self-care where there is an inability, through illness, for patients to fulfil valued roles or life goals set while well. An example is the TJF case. The applicant was a wealthy 48-year-old dairy farmer with a 30-year history of schizophrenia, mostly characterized by

‘negative’ symptoms such as social isolation and incapacity for self- care20 (as opposed to “positive” symptoms such as delusions and persecutory ideas). His illness affected his ability to maintain adequate farming practices; as a result, he had come close to losing his Fonterra supply contract due to concerns that milk from his farm would be unsafe.21

The first ground on which the responsible clinician maintained the compulsory treatment order was that the applicant had led a “socially and intellectually impoverished life”.22 The Tribunal rejected this, as the applicant’s situation was not sufficiently serious to justify compulsory treatment.

19 Re TJF, above n 4, at para 26

20 Ibid, at para 2

21 Ibid, at para 30

22 Ibid, at para 2

The second ground is more compelling. The responsible clinician and Tribunal agreed that the applicant’s sense of identity as a dairy farmer was a crucial component of his psychological health and self-worth.23 If he were released from compulsory treatment, his unwillingness to take medication voluntarily and his long history of mental illness would prevent him from carrying on as a dairy farmer, as he would likely lose his supply contract. The Tribunal found that the applicant remained mentally disordered on this ground.24

AVHM was a similar case.25 The applicant there was an intelligent 34- year-old man with a chequered history of university study, who lacked insight into the nature of his illness. His decompensated mental state left him unable to pursue his studies, but he remained focused on continuing tertiary education, amongst other goals. AEAA similarly concerned a trained doctor, willing but unable to practice due to a mental disorder.26 Other close cases do not involve such heady goals: in EJH the applicant, a frail elderly man, wanted simply to live his life “as independently as possible.”27

The mental disorder definition is ambiguous and contentious. These examples illustrate the difficulties faced by the Mental Health Review Tribunal in determining whether a patient has a seriously diminished capacity for self-care.

B. An Interpretation of “Seriously Diminished Capacity for

Self-care”

Where the text is ambiguous, the purpose of the enactment is the starting point for statutory interpretation. The long title of the MH(CAT) Act claims to “redefine the circumstances” surrounding compulsory treatment, and to “define [and] better protect” the rights of compulsory patients. The latter is most helpful to interpretation, while all the former largely says that the MH(CAT) Act is different from that which came before it; however, by redefining the circumstances the Act

23 Ibid, at para 8

24 Ibid, at para 33

25 Re AVHM, above n 7

26 Re AEAA (MHRT 08/102) 7 July 2008 at para 26

27 Re EJH (MHRT 07/140) 11 December 2007 at para 18.2

also provides them.

Considered in context, the mental disorder definition is imported into every critical stage of assessment of a patient under Parts 1 and 2 of the MH(CAT) Act, and during review of a patient’s compulsory status by the Tribunal under Part 7. The clear intention is for a patient’s condition to be continually reconsidered in light of reassessment and any change in circumstance.

The context of the Act is of little assistance. Parliament’s intended meaning for this phrase is not obvious from the text nor the purpose of the MH(CAT) Act, and the Parliamentary record does not assist interpretation. The (scarce) Hansard debates on the Mental Health Bill refer mainly to the poorly protected rights of patients and the risk of releasing dangerous inpatients.28 The mental disorder definition is rarely mentioned and never discussed in any depth. This lack of debate is likely a result of broad bipartisan support for the Bill.29 Despite the heavy focus of parliamentarians on patients’ rights, it would be foolish to import a civil liberties-based interpretation of the definition based on this reason alone. Many of these rights-invocations are plainly in reaction to the poor protections of the now repealed Mental Health Act

1969.

Compulsory treatment, where a patient has an abnormal state of mind causing a seriously diminished capacity for self-care, is clearly intended to permit that patient to function at a higher level despite his or her mental illness. There is an obvious overlap between behaviours that are a danger to the patient’s health and those that jeopardise self-care; Parliament cannot, in providing for both in separate paragraphs of the mental disorder definition, be taken to have intended a doubling-up of these justifications for compulsory treatment. Seriously diminished capacity for self-care must therefore include behaviours that threaten more than just the mental or physical health of the patient.


28 For an example of the House trying to balance civil liberties and the interest in public safety, see (1989) 502 NZPD 13605-6. The possible application of the Bill of Rights Bill to the legislation was questioned briefly at (1987) 485 NZPD 1632, but was never addressed.

29 (1992) 522 NZPD 6863; (1992) 525 NZPD 8456

1. Rights: from This Way and That

There is no disputing that the definition of mental disorder must be interpreted by the courts and Mental Health Review Tribunal and by the responsible clinician in accordance with the New Zealand Bill of Rights Act 1990 (NZBORA)30 to best affirm, protect and promote the rights contained therein.31 Any of several affirmed rights might be infringed upon using the MH(CAT) Act depending on the nature of the compulsory treatment order made, but in almost every case the right to refuse medical treatment (s 11 NZBORA) will be limited:

11 Right to refuse to undergo medical treatment

Everyone has the right to refuse to undergo any medical treatment.

This is sometimes called the right to autonomy. Section 59(4) of the MH(CAT) Act clearly limits this right to some extent by saying that treatment may be given to compulsory patients without consent, where necessary.

The most authoritative statement of the law concerning the application of the NZBORA is the Supreme Court case of Hansen v R.32 There the majority held that once Parliament’s intended meaning had been ascertained, any apparent inconsistency with the NZBORA should be identified and a consideration made under s 5 as to whether the limitation of that right can be justified. If not, the court may search for tenable alternative meanings under s 6, which requires interpretations consistent with the NZBORA to be preferred.33

But what of the case where an enactment attracts no clear intended meaning? Unlike the Hansen case, the possible meanings of the provision in question are better represented by a spectrum than a stark dichotomy. The Supreme Court does provide for this alternative. The earlier Court of Appeal decision of Moonen v Film and Literature Board of


30 NZBORA, s 3

31 NZBORA, Long title

32 [2007] NZSC 7, [2007] 3 NZLR 1

33 Ibid, at [92] per Tipping J

Review34 concerned a provision “which involved words that were in themselves conceptually elastic and therefore intrinsically capable of having a meaning which impinged more or less”35 on NZBORA- affirmed rights. In that case, the Court of Appeal said that the first step was to find all properly open interpretations of the enactment in question under s 6 NZBORA, and to adopt the meaning least infringing of the right or freedom affected.36 Later in Hansen, both Blanchard37 and Tipping JJ38 found (albeit in dicta) that the Moonen approach could still apply where no specific Parliamentary intention could be identified, while Elias CJ expressly rejected any form of NZBORA assessment in which s 5 was considered first.39

The proper interpretive method under the NZBORA then, according to the appellate courts, is to determine the reasonably open interpretation of s 2 of the MH(CAT) Act that is least infringing of the right to refuse to undergo medical treatment contained in s 11

NZBORA. However, this tidy method of interpretation is likely to remain an intellectual exercise only. The mental disorder definition has a long-standing, accepted and confirmed interpretation that would invariably be applied by any lower court or tribunal to whatever fact situations might arise. The deeper question of interpretation would only arise on appeal – the accepted interpretation having already been applied to the facts of the matter.

This broadly reflects the situation in Brooker v Police,40 a Supreme Court case handed down shortly after Hansen, which concerned the offence of disorderly behaviour under s 4(1)(a) of the Summary Offences Act

1981. As Claudia Geiringer points out, none of the three justices forming the majority in Hansen used the agreed interpretive method in the Brooker case.41 Blanchard J appears to explicitly prefer an examination of whether the application of the law as it stands is a

34 [1999] NZCA 329; [2000] 2 NZLR 9 (CA)

35 Ibid, at [93] per Tipping J

36 Ibid, at [17]

37 Hansen v R, above n 32, at [61]

38 Ibid, at [94]

39 Ibid, at [24]

40 [2007] NZSC 30, [2007] 3 NZLR 91

41 Geiringer, C. “The Principle of Legality and the Bill of Rights Act: A Critical

Examination of R v Hansen(2008) 6 NZJPIL 59, note 144

justified limitation of the right in the particular fact situation.42

So any examination under the NZBORA is likely to be of the application of the mental disorder definition, and whether or not the limitation imposed can be justified under s 5 of that Act. Ostensibly, this justified limitations test would be that contained in R v Oakes43 and adopted in New Zealand in Hansen. However, Brooker has shown that in practice the test in such a case amounts to a balancing of interests.

In light of the alternative interpretive methods made available by the Moonen, Hansen and Brooker cases, the proper approach to interpretation under the NZBORA proves elusive. Most obviously the right to refuse medical treatment, affirmed by s 11 NZBORA, is a primary consideration. One not yet mentioned, and closely tied to the rights affirmed by the NZBORA, is the common law presumption of legality whereby legislation will only restrain liberties through clear and certain terms. Thomas J in R v Pora described this most concisely:44

Fundamental rights are to be taken seriously. This Court will not accept that, in enacting legislation, Parliament has intended to erode those rights unless it makes its intention manifest to do so in clear and unambiguous language.

New Zealand’s highest courts have muddied the waters of NZBORA- consistent interpretation. The proper application of ss 5 and 6

NZBORA remains unclear, despite extensive judicial discussion. Reluctantly, I find it preferable to assess rights-consistency with a general test that consolidates the main aspects of both of these sections. It may be best that that such an ambiguous enactment should simply be given a rights-consistent interpretation that does not permit unjustifiable limits on those rights. In the absence of any clear judicial direction, I adopt that interpretive method and so examine the limitations on the right presented by the text and the scheme of the MH(CAT) Act.



42 Brooker v Police, above n 30, at [59]

43 [1986] 1 SCR 103

44 R v Pora [2000] NZCA 403; [2001] 2 NZLR 37 (CA) at [120]

2. Two Limitations

Much has been made by Mental Health Review Tribunals of the right to treatment contained in s 66 of the MH(CAT) Act:

66 Right to treatment

Every patient is entitled to medical treatment and other health care appropriate to his or her condition.

This enactment is often cited as a counterweight to the right affirmed in s 11 NZBORA: see, for example, the application of MCM.45 This appears to be a legitimate conclusion to draw. Under s 2, a person under compulsory treatment or assessment is a “patient” every time a court or Review Tribunal considers their condition (and so considers the mental disorder definition).46 Tribunals have persistently held that a person must be treated while under a compulsory treatment order. It follows then that treatment must be necessary and appropriate; unnecessary or inappropriate treatment can not constitute a justified limitation on a right.47 Section 66 would seem to imply a right to the best available treatment that can be given in order to prevent relapse.

As described above, s 59(4) MH(CAT) Act is a further significant factor limiting the s 11 right:

59 Treatment while subject to compulsory treatment order

(4) The responsible clinician shall, wherever practicable, seek to obtain the consent of the patient to any treatment even though that treatment may be authorised by or under this Act without the patient’s consent.

In combination, these sections create a significant limitation on the right to autonomy of the person, wherever that person is already a patient under the MH(CAT) Act.

These sections limit the scope of the right to autonomy, but it is not

45 Re MCM (MHRT 09/102) 9/10/2009 at para 40

46 MH(CAT) Act, ss 16, 27 and 79

47 Re CWX [1998] NZFLR 843 at 850-3

always desirable or even possible to shape the right in this way. At every time that a responsible clinician assesses the condition of a person, they are a “patient” under the Act.48 However, during the preliminary assessment examination under s 9 of the MH(CAT) Act, the person is considered a “proposed patient” rather than a “patient”. At this stage, the examining medical practitioner must determine whether or not there are reasonable grounds to believe that the proposed patient is mentally disordered.49 While this is certainly a lower standard than that required before an order for compulsory treatment is made, the assessment can still lead to deprivation of a person’s liberty while further assessment is undertaken, and attendance at this examination can be made compulsory by order of a District Court Judge or Registrar.50 It would be strange, then, if possible limitations on the s 11 NZBORA right were not considered by the examining practitioner at this stage of assessment.

The two sections are then best considered as embodying two justified limitations on the right to refuse consent to medical treatment, which apply to the mental disorder definition at every stage of assessment and treatment, regardless of whether or not a person is a “patient”. The interpretive presumption of legality requires that these sections be construed no wider than is necessary to give effect to the limitations on the right. These limitations do not completely abrogate the NZBORA right to autonomy; it would not be justified, for example, for consent to be done away with even where treatment was not appropriate to the patient’s condition. However these limitations do, in my view, act together wherever treatment is appropriate to remove the requirement of consent.

C. In Hard Cases

The vague definition of mental disorder requires a certain interpretation. In my opinion, the question that should be asked when assessing mental disorder on these grounds is whether the patient’s abnormal state of mind causes a seriously diminished capacity to care for him or herself, and so requires some kind of treatment in order for he or she to function sufficiently well according to the test outlined in

48 MH(CAT) Act, ss 11, 13 and 76

49 MH(CAT) Act, s 10(1)(b)(ii)

50 MH(CAT) Act, s 113A

re C.51 Self-care cannot, through an NZBORA-consistent interpretation, be defined so narrowly as to only include matters critical to the physical and mental health of the patient; it would not have been included in the statute as a separate justification for compulsory treatment were this the case. Self-care is then those essential activities of effective daily living that can be reasonably provided by others, or maintained with the assistance of others, as described above.

The Mental Health Review Tribunal has not ignored the NZBORA. In TJF52 the Tribunal discussed the application of the NZBORA to the question of self-care in some depth. They concluded that the right to refuse medical treatment is the “fundamental starting point” and that this right should be balanced with the need to receive treatment.53 I think that this interpretive method is consistent with what I have outlined above. The right of autonomy is limited by the MH(CAT) Act wherever treatment is necessary, so such a balancing needs to be carried out to determine what those necessities of self-care are.

1. Valued Goals and Roles

The Tribunal discussed the capacity for fulfilment and finding happiness in AVHM,54 and explained that this will normally not be amenable to the assistance of others, except to the extent to which obvious deficiencies in self-care prevent fulfilment or happiness. I think that a rights-friendly interpretation of s 2 MH(CAT) prevents a finding of mental disorder where a person is unable to achieve valued goals and roles and cannot be assisted in doing so by others. Treatment is only a justified limitation on the right of autonomy where it is necessary given the patient’s condition. As such, it cannot be said that a particular treatment is necessary for self-care if no facet of self-care can be provided for or supported through compliance with that treatment.

The applicant in TJF55 was considered mentally disordered due to a seriously diminished capacity to fulfil a valued role: that of dairy farmer. I feel that this decision cannot be legally justified on such a narrow

51 Re C, above n 6

52 Re TJF, above n 4

53 Ibid, at para 23

54 Re AVHM, above n 7, at para 42

55 Re TJF, above n 4

ground. The applicant in that case made it quite clear that he derived satisfaction from doing farm work by himself.56 Such work being done by others could therefore not contribute to his sense of identity; on the contrary, inability to work on his farm actually detracted from his self- worth. Given his admittedly solitary lifestyle, the only care that others could possibly provide for him was to ensure he remained medicated – precisely that which conflicts with the right to autonomy, and which the Tribunal itself was keen to avoid in AVHM. A compulsory order to take medication so that a person remains compliant with medication is a circular and unattractive justification for compulsory treatment.

A number of closely decided cases mirror the result in TJF. MCM was decided partially on the basis that the applicant valued her roles “as a mother, grandmother, parishioner and student.”57 In AEAA the Tribunal found that the applicant, a trained doctor, had a seriously diminished capacity “to secure her future career in medicine...which is central to her...sense of identity and self-worth.”58

The decisions of the Tribunal in these three cases were not unjust. Indeed, most would agree that a person should not lose their chosen fulfilling livelihood (in the case of TJF and AEAA) or important relationships (MCM) due to mental illness. These concepts are examples of Isaiah Berlin’s positive liberty: to act with purpose rather than react to external causes (or, in the present case, the uncontrollable internal forces of mental illness). I agree with John Dawson that these concepts are poorly embedded in New Zealand’s legal tradition;59 as such, positive liberties are only enforceable as far as they are specifically provided for in statute, so as to clearly override the negative liberty (autonomy of the person). Erratic acts done while mentally ill cannot be considered expressions of positive liberty, and non-interference should not be justified by negative liberties where those acts cause some harm to relationships or a livelihood intrinsic to a person’s well-being. Doing so ignores the debilitating effects of mental illness and disregards the value of social relationships.

56 Ibid, at para 8

57 Re MCM, above n 45, at para 47

58 Re AEAA (MHRT 08/102) 7/7/2008 at para 26

59 John Dawson “Concepts of Liberty in Mental Health Law” (2007) Otago CTO Study

<http://www.otago.ac.nz/law/otagoCTO/index.html>

Under the MH(CAT) Act, positive liberty is expressed by receiving treatment. This can justifiably limit the right to autonomy, provided that treatment is necessary and appropriate to the patient’s condition. However, this must occur within the framework provided by the MH(CAT) Act – and, as I have said above, compulsory treatment for a mental disorder affecting valued goals and roles cannot be maintained based on seriously diminished capacity for self-care.

Nigel Dunlop, a long-time convenor of the Mental Health Review Tribunal, wrote that the overall test is one of “justification” of compulsory treatment, and value judgments about the impact of non- treatment.60 By “justification”, and in the context of his article, I take him to mean “justified limitation” of the right to refuse medical treatment under the NZBORA.61 This test of justification may be the cause of strained interpretations of the MH(CAT) Act, such as the finding that TJF had a diminished capacity for self-care.

I accept, as Dawson does, that a positive conception of liberty is a relevant consideration when a person is compulsorily treated. Intervention, then, can be morally justified. I have discussed above how treatment can be a justified limitation on the right to autonomy. What remains to be established is a legal framework for this treatment, and in most cases I think this can be found. In TJF the Tribunal found that maintaining a sense of identity as a dairy farmer was integral to the applicant’s psychological and emotional health. Why not, then, justify compulsory treatment based on an abnormal state of mind causing a serious danger to the health of the applicant? “Health” in the mental disorder definition includes psychological health.62 If the same considerations apply to assessing serious danger as do to seriously diminished capacity,63 then the danger to the applicant’s health was surely sufficiently serious to justify compulsory treatment. TJF defined himself by his profession; an inability to continue dairy farming would have made him a fundamentally different person.

In MCM the applicant was found to be mentally disordered on several

60 Nigel Dunlop “Compulsory psychiatric treatment and ‘mental disorder’” [2006] NZLJ

225 at 227

61 NZBORA, s 5

62 Re IC [2001] NZHC 614; [2001] NZFLR 895 at [74]

63 Re MG, above n 5, at para 54

grounds, but if seriously diminished capacity for self-care were the sole justification she might still be compulsorily treated under the MH(CAT) Act. Two of the roles M apparently valued were based on family relationships (grandmother and mother). The ability to form and maintain relationships is a component of adequate self-care.64 Based on the decision of the Tribunal, I think that the applicant’s mental illness would impair this ability sufficiently seriously to justify compulsory treatment.65

The Tribunal carefully avoided this quandary in the AVHM decision. The Tribunal made it clear that the capacity to find happiness and fulfil potential were not a part of self-care, but that obstacles to fulfilment, which are caused by mental illness and amenable to the assistance of others, can be considered if they meet the normal definition of self- care.66 The subsequent finding of seriously diminished capacity for self- care was based on M’s inability to maintain an income or assets, or relationships, so that his goals could not be met.67 Compulsory treatment could well have been justified on similar grounds in the AEAA case, where the applicant was prevented from working as a doctor due to her schizoaffective disorder.

These examples demonstrate a strained interpretation of seriously diminished capacity for self-care. The Tribunal generally takes a forward-looking approach to its decisions; likelihood of relapse and the effect of relapse are primary considerations in determining whether patients remain mentally disordered. Because the convenor of the Tribunal admittedly takes the view that compulsory treatment should be either justified or not based on all the circumstances of the case,68 these patients are unlikely to be released from compulsory treatment if that treatment cannot be rationalised as due to diminished capacity for self-care. Stated more generally, given all the relevant circumstances it is rare that the Tribunal will abandon a finding that a person is mentally disordered, simply for lack of a legal framework to support that finding.

64 324/95, above n 12

65 Re MCM, above n 45, at para 27. At least one of M’s children was prepared to trespass M from her home should she be released from compulsory treatment; another had done so in the past.

66 Ibid, at para 42

67 Ibid, at para 44

68 Dunlop, N., above n 60, at 226

Hopefully I have shown here that some alternative rationalisation is available. Valued roles based on relationships can be alternatively considered as an inability to form relationships if untreated; relationships necessarily require the participation of other people besides the patient, and so can be considered an aspect of self-care. Roles based on other circumstances, such as occupation, can be better considered as circumstances that positively contribute towards the mental health of the applicant.

2. Giving Effect to the Patient’s Desires

Sometimes, a valued goal will not involve a great deal of talent. In EJH, for example, the applicant had the goal of living “as independently as possible”. This goal is not insignificant or unimportant, but certainly is not as demanding as university study or dairy farming, for example. The other cases detailed in the previous section all involve persons of high aspiration. It would be false to claim that the Tribunal does not treat these applicants differently from a regular patient of middling talents.

This does not reflect a solely subjective test of diminished capacity. As I have described above, the Tribunal has repeatedly shied away from such a test. In the majority of cases, diminished capacity is assessed objectively. Special skills or specific goals are considered differently. It is these cases where a mixed objective/subjective approach is taken, as was proposed by Judge Thorburn in Re C.69

The intention of the Tribunal in such cases is not to create a higher standard for the particularly intelligent. If it were, the standard of care expected of applicants would be much more obviously varied across the case law. Rather, I think that the intention is to give effect to the applicant’s desires, which could not otherwise be achieved without compulsory treatment. In EJH the applicant wished to end compulsory treatment so as to avoid antipsychotic medication. He would have quickly been returned to an inpatient unit had he become non- compliant with medication, but while medicated could be managed in a rest home, which afforded him the greater freedom he desired. Similarly, in TJF, AVHM, MCM and AEAA the applicants had certain goals that could not be fulfilled in the absence of compulsory

69 Re C, above n 6

treatment. The standard of self-care was increased in those cases based not only on potential to achieve, but desire and potential.

The application of SMB70 was partially decided on seriously diminished capacity for self-care. In that case the applicant had a concrete belief that she could regain custody of her children by repeatedly appealing the matter to the Privy Council and the United Nations Human Rights Committee. B had previously failed in both forums. One consideration the Tribunal had in mind was that the Applicant’s intense desire to travel overseas and appeal the matter would actually take her away from her children, as she would be in a different country and have no chance of legal success.71 The patient’s desire to have her children returned to her custody was therefore best enhanced by sustaining compulsory treatment (although there is no indication that the Tribunal decided the application on this matter).

3. The Potential for Homelessness

As in the case of EJH, often a particular accommodation will only be maintained as long as the applicant is in good mental health. When mental health deteriorates, the same conditions cannot be sustained and the patient loses their accommodation. There is potential then for patients to become homeless if improperly released from compulsory treatment.

Sometimes such a case is assessed as a deficit of self-care. This is generally the case when an applicant wishes to leave a care facility without having alternative care plans. In the case of FS,72 for example, the elderly applicant lived in a rest home because her husband could not care for her at home. She would leave the home if released from compulsory treatment, due to her grandiose schemes for solving world problems. This can be characterised as an inability to accept care due to an abnormal state of mind.

Other cases involve an unwillingness to receive treatment, while


70 Re SMB (MHRT 07/151) 20 March 2007

71 Ibid, at para 52

72 Re FS (NRT 563/98) 20 March 1998

intending to remain in care. The facts of FLW73 and DBF74 are broadly similar. In each case, an elderly applicant cared for in a rest home sought release from compulsory treatment, but wished to remain in care at the same facility. This was simply not possible: the applicants would become too difficult to manage in the community if their conditions went untreated, which would force a move into inpatient care. These decisions focused on the availability of a less intrusive form of treatment. Rest home care is much preferable to inpatient care at a hospital. The pharmaceutical treatment involved might remain the same, but at least the therapy milieu is more agreeable.

D. Victoria: A Comparison

In Victoria, the criteria for compulsory treatment are contained in s 8(1)

of the Mental Health Act 1986 (the Victorian MHA).

8 Criteria for involuntary treatment

(1) The criteria for the involuntary treatment of a person under this Act are that-

(a) the person appears to be mentally ill; and

(b) the person's mental illness requires immediate treatment and that treatment can be obtained by the person being subject to an involuntary treatment order; and

(c) because of the person's mental illness, involuntary treatment of the person is necessary for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public; and

(d) the person has refused or is unable to consent to the necessary treatment for the mental illness; and

(e) the person cannot receive adequate treatment for the mental illness in a manner less restrictive of his or her freedom of decision and action.

Section 8(1)(c) is broadly equivalent to the second limb of the mental disorder definition contained in s 2(1) of the MH(CAT) Act. The main difference between these provisions is the absence, in the Victorian

73 Re FLW (MHRT 07/073) 19 July 2007

74 Re DBF (MHRT 08/088) 7 November 2008

statute, of seriously diminished capacity for self-care (or equivalent) as a justification for compulsory treatment.

Some aspects of self-care, such as nutrition and housing, could easily be considered as harmful to the health of a person where they are not present. In AW,75 for example, the patient had been homeless over a long period; this was rightly considered harmful to his physical health. However, the absence of a specific provision for when diminished self- care justifies compulsory treatment might indicate that the more complex matters of self-care, such as the maintenance of beneficial relationships, are not good reasons for depriving a patient of his or her liberty in that jurisdiction. Other Australian jurisdictions had, at the time of enactment of the Victorian MHA, criteria for compulsory treatment that explicitly incorporated matters of self-care.76 Since the enactment of the Victorian MHA, however, states have taken a still narrower approach. In Queensland77 and in the Australian Capital Territory,78 for example, the criteria for compulsory treatment conspicuously lack any reference to the health of the patient; the phrase “mental or physical deterioration” is preferred. This may indicate that in Victoria health is an expansive concept including “complete physical, mental and social well-being”.79

The Victorian Mental Health Review Board initially endorsed the expansive view of health. In the review of BC,80 the Board gave a reading of “health” in s 8(1)(c) that included the more complex matters normally considered as a part of self-care in New Zealand and other jurisdictions. Compulsory treatment could be justified if:

there is a real risk that, without treatment, the behavioural manifestations of the mental illness will be such as to result in the person’s isolation for [sic] the community in which he or she lives,


75 Re AW (1991) 1 MHRBD (Vic) 414

76 See for example the NSW Mental Health Act 1958, s 18. A mentally ill person is

defined partly as one “incapable of managing himself or his affairs”.

77 Mental Health Act 2000 (Qld), s 14

78 Mental Health (Treatment and Care) Act 1994 (ACT), s 28

79 Preamble to the Constitution of the World Health Organization as adopted by the

International Health Conference, New York, 19-22 June, 1946

80 Re BC (1987) 1 MHRBD (Vic) 26

interacts and is sustained.81

Presumably the Board intended to say “from” rather than “for” where I

have indicated.

This reasoning was taken up in later decisions. In CW82 the applicant had caused damage to his family relationships through his vociferous opposition to the church attended by his wife and children. He felt that all the family should worship in one church. Otherwise, W functioned perfectly normally, and had no delusional beliefs. He was not considered a risk to the safety of others, nor to his own safety or physical health. His continued detention was justified entirely on the basis of the continuing damage to his familial relationships.83 This trend was continued in LR, where the Board equates “social stability and mental health”. 84

A differently constituted Board rejected this reasoning in HL.85 That Board preferred to use social isolation as an indicator of deterioration in physical or mental health, rather than a condition that would justify compulsory treatment.86 L was a middle-aged woman with fixed delusional religious beliefs, who thought that the Virgin Mary had cured her diabetes. L’s social isolation was used as evidence that her physical and mental condition might deteriorate were she not subject to compulsory treatment. This rejection of social well-being as a component of health may indicate an overstepping of the statutory language by earlier tribunals. The adoption of more specific statutory language in other Australian states certainly indicates an unwillingness to examine relationships as evidence of mental illness requiring treatment in those jurisdictions. The New Zealand Mental Health Review Tribunal confines its inquiry to the physical and mental aspects of health; this narrow interpretation seems the best approach to take in a field where rights are normally at issue, in the absence of wider legislative criteria.

81 Ibid, at 29

82 Re CW (1993) 2 MHRBD (Vic) 64

83 Ibid, at 73-4

84 Re LR (No. 2) (1995) 2 MHRBD (Vic) 214 at 217

85 Re HL (1997) 2 MHRBD (Vic) 485

86 Ibid, at 499

Conclusion

The Mental Health Review Tribunal walks a fine line between paternalism and ensuring that patients receive necessary and appropriate treatment. Generally the Tribunal comes to the right decision, albeit sometimes for flawed reasons. I have acknowledged that the outcomes of Tribunal hearings would probably not change if certain lines of reasoning were not available – but nor should they change in most cases. However it is important, both for the satisfaction of the applicant and the avoidance of fruitless appeals, that such decisions are legitimately reasoned within the law. This requires an interpretation of the mental disorder definition that reflects the purpose of the MH(CAT) Act, as well as the relevant rights and interests of patients. Limitation of these rights can only be justified where treatment is necessary for the fulfilment of the second limb of the mental disorder definition.


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