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Mapson, Rebekah --- "Assessment and treatment of children under the Mental Health (Compulsory Assessment and Treatment) Act 1992" [2013] NZLawStuJl 5; (2013) 3 NZLSJ 70

Last Updated: 29 May 2014

ASSESSMENT AND TREATMENT OF CHILDREN UNDER THE MENTAL HEALTH (COMPULSORY ASSESSMENT AND TREATMENT) ACT 1992

REBEKAH MAPSON

Introduction

Mental illness in young people is a serious issue worldwide, but is a particular concern in New Zealand, which has the dubious distinction of having the highest youth suicide rate for 15-to-24-year-olds (17.7 deaths per 100,000 people) of all OECD countries¹. Te Rau Hinengaro,² New Zealand’s first mental health survey, highlighted that

^{16-to-24-year-olds had the highest prevalence of any mental health}

disorder and that half of the most commonly occurring mental health disorders have begun by the age of 18.³ Despite these findings, available mental health services are often considered inadequate for children and young people, a situation attributed to the “adultocentrism”⁴ of the

existent services and lack of appropriately trained staff for child mental

LLB/BA/MusB(Hons) (in progress), University of Otago.

¹ “Suicide Facts: Deaths and intentional self-harm hospitalisations 2010”

(15 August 2012) Ministry of Health <www.health.govt.nz>.

² Mark Oakley-Browne, J Wells, and Kate Scott “Te Rau Hinengaro: The New

Zealand Mental Health Survey” (September 2006) Ministry of Health

<www.health.govt.nz>.

³ Sylvia Bell and Warren Brookbanks Mental Health Law in New Zealand

(2nd ed, Brookers, Wellington, 2005), at 127.

⁴ At 127.

health intervention.⁵ This article discusses the issue of compulsory treatment of mental disorder in children under the Mental Health (Compulsory Assessment and Treatment) Act 1992, and this legislation’s compatibility with the values of the United Nations Convention on the Rights of the Child, in particular Article 12(1) and (2),⁶ Article 13⁷ and the Code of Health and Disability Services Consumers’ Rights Regulation 1996.⁸ It will consider the historical, international and policy context in which the legislation developed, and its effectiveness in balancing the “wellbeing and best interests” of

children, with the need to treat psychiatric illness.

⁵ P Royce “Focus on psychiatry in New Zealand” (2002) 180 The British

Journal of Psychiatry, at 468-470.

⁶ Article 12 provides: “(1) children’s views shall be given due weight in accordance with the age and maturity of the child, and (2) that children shall be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law”. New Zealand legislation has moved away from the concept of “age and maturity” and has instead adopted the idea in the Care of Children Act 2004 that “any views the child expresses must be taken into account”. However, it is the concept of giving children a voice in situations affecting them that is important.

^{7 Article 13 provides that children shall have the right to seek, receive and}

impart information and ideas of all kinds.

⁸ See particularly the Health and Disability Commissioner Code of Health and Disability Services Consumers' Rights Regulation 1996, Right 7.

A. A Conception of Childhood Mental Health

What is meant by the term “child” has changed over time within different historical contexts⁹ and for centuries children were considered to be little different from objects owned by the adult male of the family.¹⁰ The modern conception is linked to the psychological understanding of the human race which began to develop in the emerging field of psychology. Influential authors such as psychologist Jean Piaget (1986-1980) and Lev Vygotsky (1896-1934) advanced the notion of childhood as a separate stage in human development and acknowledged the status of children as distinct from adults particularly in regards to cognitive, physical and emotional immaturity.¹¹ As a result, in the nineteenth and twentieth centuries, changing social perceptions of children led to legislation that sought to protect their welfare.¹² In the United States, for example, laws were passed establishing juvenile courts and a Federal Children’s Bureau, while the United Kingdom passed the Guardianship of Infants Act 1886, and New Zealand passed the Child Welfare Act 1925, the Guardianship Act 1968, and the Children, Young Persons and Their Families Act 1989. New Zealand also ratified the United Nations Convention on the Rights of the Child

in 1993 committing to the international community that it will develop

⁹ See Y Hebert and WJ Hartley Personalised Learning and Changing Conceptions of Childhood and Youth (Schooling for tomorrow, Personalised Education, OECD, Paris, 2006).

¹⁰ See A Sondheimer and P Jensen “Child and Adolescent Psychiatry” in S Bloch and SA Green (eds) Psychiatric Ethics (Oxford University Press, Oxford, 2008).

^{11 Laura Berk Child Development (7th ed, Pearson Education, Boston, 2006).}

¹² Sondheimer and Jensen, above n 10.

all actions and policies in light of the best interests of the child.¹³ One such way to do so was through the enactment of the Care of Children Act 2004, the purpose of which is to promote children’s welfare and best interests and facilitate their development by helping to ensure appropriate arrangements are in place for their guardianship and care and to recognise certain rights of children.¹⁴ Similarly, New Zealand has passed legislation including the Health and Disability Commissioner Act 1994 (resulting in the Code of Health and Disability Services Consumers’ Rights Regulation 1996) and the New Zealand Bill of Rights Act 1990 codifying a set of rights pertaining to all New Zealanders, irrespective of age.

Notwithstanding the development of child-focused legislation, New Zealand continues to assess children’s abilities to understand and consent to medical treatment against an adult standard of law, the Mental Health (Compulsory Assessment and Treatment) Act 1992. A recent survey revealed that no country in the world has a clearly defined mental health policy pertaining uniquely to children and adolescents. ¹⁵

^{Yet 34 countries were found to have identifiable mental health policies}

which may have beneficial impact on children and adolescents. This relative lack of policies is unfortunate, since research has shown that an

explicit policy for child and adolescent mental health can improve the

¹³ N Enzer “Ethics in Child Psychiatry – An Overview” in D Schetkyand E Benedek (eds) Emerging Issues in Child Psychiatry and the Law (Brunner/Mazel, New York, 1985).

¹⁴ Care of Children Act 2004, s 3.

¹⁵ JP Shatkin and ML Belfer “The global absence of child and adolescent mental health policy” (2004) Child Adolescent Mental Health 104.

quality and accessibility of services and promote the rights and mental health of all children and adolescents within a country.¹⁶

B. Development of Mental Health Legislation in New Zealand

Following a number of inquiries conducted by the New Zealand Mental Health Commission, it was recognised that early intervention is important in ensuring that “mental illness” is not a lifelong disruption.¹⁷

^{This resulted in a number of documents, including: New Futures: A}

Strategic Framework for Specialist Mental Health Services for Children and Young People in New Zealand,¹⁸ Better Times: Contributing to the Mental Health of Children and Young People,¹⁹ Te Tāhuhu - improving mental health 2005-2015: The second New Zealand mental health and addiction plan,²⁰ and Te Kōkiri: The Mental Health and Addiction Action Plan 2006–2015.²¹ All highlighted how young people’s mental health requirements needed to be addressed. In

an attempt to ameliorate the issue of youth mental health, the original

¹⁶ “Child and Adolescent Mental Health Policies and Plans” (2005) World

Health Organization <www.who.int>.

¹⁷ “What to do, how to do it and everything in between. A Resource for Youth Consumer Advisors” (2009) The Werry Centre for Child and Adolescent Mental Health Workforce Development

^{<www.werrycentre.org.nz>.}

¹⁸ “New Futures: A Strategic Framework for Specialist Mental Health Services for Children and Young People in New Zealand” (June 1998) Ministry of Health <www.moh.govt.nz>.

^{19 “Better Times: Contributing to the Mental Health of Children and Young}

People” (June 1999) Ministry of Health <www.health.govt.nz>.

²⁰ “Te Tāhuhu — Improving Mental Health 2005-2015: The Second New Zealand Mental Health and Addiction Plan” (June 2005) Ministry of Health <www.moh.govt.nz>.

^{21 Te Kōkiri: The Mental Health and Addiction Action Plan 2006–2015}

(August 2006) Ministry of Health <www.moh.govt.nz>.

draft of the Mental Health Bill (which preceded the Mental Health (Compulsory Assessment and Treatment) Act 1992) included a definition that would have applied to children under the age of 17. Children and young people would have been considered mentally disordered if their behaviour indicated “an abnormal state of mind characterised by delusions or by disorders of mood or perception or volition or cognition or by disturbance of conduct or behaviour of such a degree that it poses a serious danger to the health or safety of that person or others or mental or emotional development of that person” (emphasis added). The need for the italicised limb showed the difficulty of defining youth mental illness, and recognised that mental illness in young people does not manifest itself in the same way as it does in adults. For example, studies on human development and mental illness indicate that children and young people are less likely to verbalise their problems and are more prone to act out delusions.²²

However, the additional limb raised concerns that the law might be used as a means of social control, rather than increasing legal protection to children. This concern has been reflected on an international platform where the efficacy of adolescent institutionalisation in “therapeutic” boarding schools, youth boot camps, and other similar programmes has been questioned and strongly criticised.²³ As described by one United States psychologist, “most of these kids get into the

system because they are troubling to someone else, not because they are

²² Peter Boshier “Early Mental Health Intervention with Young People — Is the Mental Health Act a Help or a Hindrance” (paper presented at Capital Coast District Health Board Conference, Wellington, 2009).

²³ JE Bettman and RA Jasperson “Adolescents in residential and inpatient treatment: A review of the outcome literature” (2009) Child & Youth Care Forum 161.

troubled”.²⁴ As a result, the additional limb of the definition was removed, and the Mental Health (Compulsory Assessment and Treatment) Act 1992 applies to all people, irrespective of age. However, in recognition of the vulnerability of children s 4 provides that the Act cannot be invoked by a “person's... delinquent behaviour,” while additional constraints specific to children are imposed in s 8 including the right to reassessment at 17, consent provisions and an injunction on brain surgery for people under the age of 17.

C. Assessment Provisions

The Mental Health (Compulsory Assessment and Treatment) Act 1992 applies if a person meets the s 2 definition of “mental disorder”, which

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.

In terms of assessment of children under the age of 17, the Act requires that “wherever practicable” the first examination should be carried out by a psychiatrist with expertise in child psychiatry.²⁵ This requirement is intended to prevent misdiagnosis of young people who may simply be

displaying challenging behaviour characteristic of some adolescents

²⁴ N Darnton “Committed Youth: Why Are So Many Teens Being Locked

Up In Private Mental Hospitals?” Newsweek (31 July 1989) 66-72.

²⁵ Mental Health (Compulsory Assessment and Treatment) Act 1992, s 86.

rather than the “abnormal state of mind” required for treatment under the Act. However, in 1996 the Mason committee noted that child psychiatrists are currently one of New Zealand’s scarcest medical professional.²⁶ As a result, this intended safeguard may be undermined because assessment can be carried out by any other medical practitioner approved by the Director of Mental Health Services.²⁷

Case law has helped to shape the interpretation of s 2 by stating that a diagnosis of mental illness does not itself satisfy the requirements for a compulsory treatment order. Re PJ²⁸ (SRT 28/93) establishes that the definition is not concerned with diagnostic labels. Furthermore, in Re RT,²⁹ 12/4/96, SRT13/96 it was stated, “Parliament has deliberately eschewed reference to major mental disorders as understood in the psychiatric community ... [but] has set the parameters for establishing the existence ... of a mental disorder according to the presence or absence of observable symptomological indices”. A child may be given a psychiatric diagnosis (for example, schizophrenia), but this in itself is not necessarily enough to satisfy the s 2 definition of “mental disorder”;; rather the symptoms of the illness will be identified to establish the need for a Compulsory Treatment Order.

Another way in which children might be disadvantaged under the adult test of mental disorder is the requirement that a mentally disordered person must have diminished capacity for self-care. In Re C 278/8/00,

²⁶ KH Mason Inquiry under s 47 of the Health and Disability Services Act 1993 in Respect of Certain Mental Health Services: Report of the Ministerial Inquiry to the Minister of Health Hon Jenny Shipley (Ministry of Health, Wellington, 1996).

²⁷ Bell and Brookbanks, above n 3.

²⁸ Re PJ (SRT 28/93).

²⁹ Re RT, 12/4/96, SRT13/96.

DC Auckland CAT132/99³⁰ Thorburn J proposed a mixed subjective/objective test for assessing diminished capacity for self-care stating that “[t]he Court should objectively assess what an ordinary person would find acceptable as a minimum standard of effective self care for a person of the patient’s circumstances and background”. However, whether this is applicable to children is debatable as all children have a “diminished capacity for self care” based on legal status, development and age, and therefore more easily satisfy the definition of mental disorder. On the other hand, the Act could be said to be implementing the requirements of the United Nations Convention on the Rights of the Child to protect the best interests and wellbeing of a child. Research has shown that children and adolescents seldom decide for themselves when to seek out health services for physical or emotional problems.³¹ Therefore, one way in which the Act recognises the different situation of children is by assuming that a child has a lower level of capacity for self-care, and accepting that it is the role of the parent to seek medical care.

Once an assessment has been undertaken, if a psychiatrist considers there are reasonable grounds for believing that a child is mentally disordered, a Compulsory Treatment Order may be enacted. A Compulsory Treatment Order requires a patient “to accept such treatment for mental disorder as the responsible clinician shall direct”³² during the first month of the Order and thereafter if a psychiatrist appointed by a Review Tribunal considers treatment is in the patient’s

best interests. Should this situation arise, a child’s caregiver is entitled

³⁰ Re C 278/8/00, Judge Thorburn DC Auckland CAT132/99.

³¹ “Better Times: Contributing to the Mental Health of Children and Young

People”, above n 19.

³² Mental Health (Compulsory Assessment and Treatment) Act 1992, s

59(1).

under ss 19(6) and 20(3) to be present throughout any hearing except as the Judge may otherwise order, and may be heard by the court when an application for a Compulsory Treatment Order is considered. The explicit indication in the Mental Health (Compulsory Assessment and Treatment) Act 1992 that a young person’s caregiver must be informed and consulted on assessment and treatment decisions of the young person is one way the Act attempts to afford young people additional protections in regards to treatment for mental health problems.

This assessment process places the caregiver in a difficult position and may compromise their ability to effectively advocate for the child, a serious issue when children are considered incapable of advocating for themselves. The formality and paternalism of a judicial hearing to order and enforce a Compulsory Treatment Order might result in resentment from both the caregiver and the child, leading to a breakdown in their relationship.³³ Similarly, the caregiver might have feelings of disempowerment, an inadequate understanding or misperception of diagnosis and treatment, and so might feel responsible for the illness. This could lead to increased chances of non-compliance with medication and medical visits, further compromising the health of the child.

On the other hand, too much involvement by a misinformed caregiver may hinder a child’s recovery. In Journeys of Despair, Journeys of Hope: Young Adults Talk Abut Severe Mental Distress, Mental Health Services and

Recovery³⁴ the mental health experiences of children were documented

³³ Boshier, above n 22.

³⁴ Heather Barnett and Hilary Lapsey Journeys of Despair, Journeys of Hope: Young Adults Talk About Severe Mental Distress, Mental Health Services and Recovery. (Mental Health Commission, Wellington: Mental Health Commission, 2006).

throughout the course of their mental health treatment. In the chapter “Going Downhill” several participants described how “family ... continued to be an ongoing source of distress, and declining mental health was attributed to continuing to live in an insecure, unsafe and unpredictable family environment.”³⁵

One way this issue might be ameliorated would be to appoint a specialist lawyer for the child to assist in advocacy at judicial hearings, but also to be available to hear the views of the child and their caregiver, explain the assessment and treatment processes at each stage and reinforce the rights of each party. Part 8 of the Act outlines special provisions relating to protection of children’s rights³⁶ which requires that if necessary a personal representative other than a family member will be appointed to ensure that that child’s rights are protected.

D. Consent Provisions

Another major issue that has arisen through the enactment and application of the Mental Health (Compulsory Assessment and Treatment) Act 1992 is the potential removal of the right to consent to medical treatment for mental disorder. Seeking informed consent is part of a healthcare provider’s “pivotal ethical duty to uphold and enhance their patient’s autonomy” by respecting the patient’s ability to make an

informed decision, even if in the end the patient involved decides not

³⁵ At 25.

³⁶ This is in line with Principle 2 of the United Nations Principles for the Protection of Persons with Mental Illness: “Special care should be given within the purposes of the Principles and within the context of domestic law relating to the protection of minors to protect the rights of minors, including, if necessary, the appointment of a personal representative other than a family member.”

to accept recommended treatment.³⁷ Consent is therefore a fundamental ethical concept in the provision of healthcare services.

There are a number of statutory provisions and regulations that protect the right to consent. The Health and Disability Commissioner Code of Health and Disability Services Consumers' Rights Regulation 1996 provides that all New Zealanders, irrespective of age, are entitled to make “an informed choice and give informed consent”.³⁸ However, it also states that “nothing in this Code shall require a provider to act in breach of any duty or obligation imposed by any enactment or prevents a provider doing an act authorised by any enactment”, suggesting that the right to consent may be overridden in situations where the Mental Health (Compulsory Assessment and Treatment) Act 1992 applies.

Similarly s 11 of the New Zealand Bill Of Rights Act 1990 states that everyone has the right to refuse medical treatment. However this is in contention with s 59(1) of the Mental Health (Compulsory Assessment and Treatment) Act 1992. In In re MP 20/8/97, SRT64/96 the prevailing view was that the limit on the right to refuse treatment for a mental disorder was demonstrably justifiable under s 5 of the New Zealand Bill of Rights Act. The right to refuse treatment is therefore overridden.

This has a number of implications for children. Not only is childhood a life stage in which capacity to make informed decisions is changing and developing, and for which the law is less than explicit, but there is also a

comparative lack of case law on which to base guidance about

³⁷ “Consent in Child and Youth Health: Information for Practitioners” (2

December 1998) Ministry of Health <www.health.govt.nz>.

³⁸ The Health and Disability Commissioner Code of Health and Disability

Services Consumers' Rights Regulation 1996, Right 7.

children’s capacity and rights to consent or refuse to give consent to treatment. Generally the right to provide or withhold consent for medical treatment is afforded to a child’s primary caregiver, and their views might conflict with the views of the child, whether in the best interests of the child or not. However, this right can be overridden where an application for a Compulsory Treatment Order is approved, transferring the parental duty to protect the best interests and wellbeing of the child to the state. This “hints of paternalism”, leading to a feeling of disenfranchisement³⁹ and could potentially lead to issues of gate- keeping by parents that compromise the health of the child.

The Act does attempt to protect some consent and procedural rights of young people with mental disorders by allowing people over the age of

16 years to have a voice in their treatment.⁴⁰ Section 87 states that “notwithstanding anything in s 36 of the Care of Children Act 2004 or any other enactment or rule of law to the contrary, in respect of a patient who has attained the age of 16 years, the consent of a parent or guardian to any assessment or treatment for mental disorder shall not be sufficient consent for the purposes of this Act”. Consequently, a young person may refuse consent to any form of treatment for a mental disorder except when undergoing assessment pursuant to s 11 or s 13 or during the first month of a Compulsory Treatment Order. In such circumstances they are entitled to a “second opinion” on the treatment from an independent psychiatrist appointed for that purpose by the Mental Health Review Tribunal, as if they were of full age. By giving young people over the age of 16 the ability to consent, situations involving the informal admission of young people by the substituted

consent of their parents and guardians are avoided. This affords young

³⁹ Boshier, above n 22, at 6.

⁴⁰ Mental Health (Compulsory Assessment and Treatment) Act 1992, s 87.

people the best possible balance between protection and liberty.⁴¹ It also acts to preserve the principles of the United Nations Convention on the Rights of the Child to recognise children as autonomous beings and protect civil, social and health rights of children.

While the Act only makes provisions for children over the age of 16 to have a say in their treatment, at common law a child under the age of

16 years may give valid and effective consent if he or she has a sufficient understanding of the significance of the proposed treatment. This was outlined in the House of Lords decision in Gillick v West Norfolk and Wisbech Area Health Authority⁴² where Lord Scarman stated “the parental right to determine whether or not their minor child below the age of 16 will have the medical treatment terminates if, and when, a child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”. The Gillick competency test can be seen reflected in the Code of Health and Disability Services Consumers’ Rights Regulation 1996, which creates a presumption of competence and recognises the right of a consumer with diminished competence to retain the right of informed consent to a level appropriate to that competence.

When a child is not Gillick competent the law generally favours a parent’s right to decide for their child.⁴³ With this in mind it is important to note that s 6 of the Care Of Children Act 2004 and art

12(1) of the United Nations Convention on the Rights of the Child and

Right 7(4)(b) of the Code of Health and Disability Services Consumers’

⁴¹ “Consent in Child and Youth Health: Information for Practitioners”,

above n 37.

⁴² Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] 1 AC 112.

⁴³ See generally Bernard M Dickens “The Modern Function and Limits of

Parental Rights” (1981) 97 LQR 462.

Rights Regulation 1996 emphasise the importance of the “views of the child” irrespective of their Gillick competency. Despite this clear legislative intent, recent research suggests many Family Court professionals have not “substantially altered their practices from the prior provisions in section 23 of the Guardianship Act 1968” which states that “the Court shall ascertain the wishes of the child, if the child is able to express them, and shall ... take account of them to such extent as the Court thinks fit, having regard to the age and maturity of the child” (emphasis added). Children’s views therefore continue to be discounted based on age and maturity.⁴⁴ In situations involving a Community Treatment Order it could be argued that a mentally ill child is or may not be capable of expressing coherent and informed views on their treatment. However, the Care Of Children Act 2004 states that “any views the child expresses (either directly or through a representative) must be taken into account” (emphasis added).⁴⁵ In order to address this issue, it has been suggested that court professionals be required to undertake additional training when working on cases involving children and families.⁴⁶ This could perhaps be extended to include training in child development or psychology and specialist advocacy skills for dealing with young people. It is also important to note there is a requirement to inform the child about the treatment (that is, risks and side effects), a right that is not displaced where a parent or guardian gives consent to treatment. This is in line

with art 13 of the United Nations Convention on the Rights of the

⁴⁴ See generally Antoinette Robinson and Mark Henaghan “Children: Heard but not listened to? An analysis of children’s views under s 6 of the Care of Children Act 2004” (2011) 7 NZFLJ 39.

^{45 Care of Children Act 2004, s 6(2)(b).}

⁴⁶ Robinson and Henaghan, above n 44, at 39.

Child, which states that children are entitled to receive information of all kinds.⁴⁷

E. Recommendations for Improving Current Mental Health

Law

“The interventions of the law into children’s lives, whether to protect or to punish, need to be made with attention to their emerging and changing abilities and needs”.⁴⁸ This passage recognises that just as the law is developing, so too is our understanding of a child’s social, mental and cultural development. Despite some flaws, the Mental Health (Compulsory Assessment and Treatment) Act 1992 is positive for children in a number of ways: it enables early intervention to occur when there is evidence of mental disorder; it recognises the rights of young vulnerable patients and of the need for consent to be sought where treatment is ongoing; and it recognises the need to advise those closest to young patients, with a degree of precision as to the perceived nature of the mental illness and its best treatment.⁴⁹ The law could be improved by providing specialised education and training to medical and legal professionals involved with child welfare, and by acknowledging that childhood mental illness often manifests differently to mental illness in adults.

There remains, however, one particularly concerning issue with the

Mental Health (Compulsory Assessment and Treatment) Act 1992.

⁴⁷ United Nations Convention of the Rights of the Child, art 13.

⁴⁸ Jeanette Lawrence “The Developing Child and the Law” in Geoff Monahan and Lisa Young (eds) Children and the Law in Australia (LexisNexis Butterworths, Sydney, 2008) 83 at 104.

⁴⁹ Boshier, above n 22.

Despite all the evidence advocating for child-specific policy and law, the Act continues to apply to all New Zealanders, irrespective of age.⁵⁰

The power of the Act to impose strict state and medical control over both a child and their caregiver may place that child at a greater disadvantage to their adult counterparts, as children are already in a vulnerable position due to age and emotional development. This issue might be mitigated if there was a guarantee that a childhood mental health specialist would always be available to provide assessment where mental disorder is suspected.⁵¹ Unfortunately evidence of a lack of trained professionals in this area, as well as limited resources, means this is not always a reality.⁵² The New Zealand Government has an obligation under the United Nations Convention on the Rights of the Child to consider a child’s best interests when implementing policy, and could do so by allocating greater funding and resources to the area of adolescent mental health and mental health research. This would strengthen strategies for early identification and intervention for children at risk and provide for crisis and long-term intervention strategies for those with more serious conditions.⁵³ Furthermore, making such investments into child wellbeing would ultimately translate into long-term social, academic and economic benefits for New

Zealand society.⁵⁴

⁵⁰ Mental Health (Compulsory Assessment and Treatment) Act 1992, s 2.

⁵¹ Therefore ensuring that symptoms are attributable to a mental disorder or illness, rather than a behavioural issue.

⁵² Mason, above n 26.

⁵³ “Results-based Public Policy Strategies for Promoting Children’s Social, Emotional and Behavioral Health” (2012) Center for the Study of Social Policy <www.cssp.org >.

⁵⁴ See Carolyn Doughty “The effectiveness of mental health promotion, prevention and early intervention in children, adolescents and adults — A critical appraisal of the literature” (2005) 8 NZHTA Report at iv.

F. Conclusion

Growing evidence indicates an approach to mental health that incorporates promotion, prevention and early intervention can have far-reaching benefits by improving mental health across the community as well as reducing the prevalence and burden of mental health problems and mental disorders in the long-term.⁵⁵ This provides strong evidence that New Zealand’s mental healthcare system, like much of the world, would benefit from development and implementation of child-specific mental health law and policy. By taking into account psychological and sociological developmental theory, the provisions of the Care of Children Act 2004 and the obligation to uphold the principles of the United Nations Convention on the Rights of the Child, as well as the knowledge and expertise of child mental health specialists, New Zealand would not only strengthen current mental health laws but would provide the best possible outcomes for children

and adolescents with mental illness.

⁵⁵ Mental Health Commission Early Intervention and Prevention in New

Zealand (1997).