University of Otago Law Festschrifts
Last Updated: 31 May 2019
10 THE POWERS CONFERRED BY
COMMUNITY TREATMENT ORDERS
1. THE POWERS CONFERRED
This essay concerns the scope of the powers conferred by New Zealand’s mental health legislation – the Mental Health (Compulsory Assessment and Treatment) Act 19921 (the MHA or the Act) – to supervise the treatment of compulsory psychiatric patients outside hospital under a Community Treatment Order (CTO).2 Generally, a CTO ‘requires’ the patient ‘to attend’ at a specified location for ‘treatment for mental disorder’, and ‘to accept’ that treatment,3 as directed by their Responsible Clinician (RC).4 To enforce those requirements, the Act confers powers on designated health professionals to enter the specified place of treatment; take the patient to that place; treat them there; and recall them to hospital if their community treatment is no longer viable.5 The Police can assist with the exercise of those powers, if requested. They can enter premises; take the patient to the place of treatment; detain them there for up to six hours while treatment is conducted; and return them to hospital following recall.6 Moreover, in performing those powers, health professionals and the Police are expressly authorised to use ‘such force as is reasonably necessary in the circumstances’.7 In combination, these powers are clearly intended to authorise monitoring of the condition of CTO patients in the community, and to authorise members of mental health teams to insist they attend outpatient appointments – or attend at their residence – for assessment and treatment.
See generally John Dawson “Mental Health and Intellectual Disability” in PDG Skegg and Ron Paterson (eds) Health Law in New Zealand (Thomson Reuters, Wellington, 2015) Part E; John Dawson and Kris Gledhill (eds) New Zealand’s Mental Health Act in Practice (Victoria University Press, Wellington, 2013).
In New Zealand, a CTO is made either by a judge or by the patient’s Responsible Clinician (RC) who has the power to switch a patient to a CTO from an InPatient Order (InpO) previously made by a judge.
MHA, s 29(1).
MHA, s 59(1).
MHA, ss 29(2), 29(3), 40, 59.
MHA, s 41.
MHA, s 122B.
This chapter concerns the precise scope of these powers in certain difficult situations during delivery of compulsory community mental health care. In particular, it considers:
The powers conferred by a CTO must be exercised in many difficult situations, when a more or less urgent response is required. They are applied to patients with varying histories and conditions and operate in a changing service environment. The boundaries between ‘hospital’ and ‘community’ treatment, for instance, are increasingly blurred. Some ‘community’ facilities provide services at a level of intensity that would previously have been provided only in a hospital, and some have locked units or secure wards.
Certain questions concerning the scope of these powers have been considered in the District or Family Courts. In Re F,8 for instance, the question was whether the requirement imposed on the patient to ‘attend for treatment’ at a specified place could require full-time attendance at a community facility. In D,9 the matter was whether the patient could be directed to live at a certain boarding house, under specified conditions. In DBC,10 it was whether the patient could be required to attend a hospital ward periodically for treatment and remain there for observation afterwards, to assess the response. In CB,11 it was whether a patient could be kept in secure rest home care, via an exercise of the RC’s power to grant ‘leave’ to a compulsory inpatient ‘on such terms and conditions, as that clinician thinks fit’.12 These decisions help determine the boundaries of the powers conferred, but grey areas remain. In some situations there is little more than the text of the statute to
8 Re F [mental health] (1994) 11 FRNZ 362 (DC).
9 Department of Health v D (1999) 18 FRNZ 233 (FC).
10 Southland Hospital Board v DBC  NZFC 1874 [DBC]; the
correct name of the board at the time was the Southland District Health
11 Waitemata District Health Board v CB (2005) 25 FRNZ 709 (DC).
12 MHA, s 31(2).
go on, supplemented by official Guidelines to the MHA issued by the Ministry of Health,13 and general principles of statutory interpretation.
2. MATTERS OF INTERPRETATION
Determining the scope of the powers conferred to manage compulsory outpatients’ treatment often requires interpretation of the full statutory scheme against a backdrop of patients’ protected legal rights. In a marginal case, a court may need to decide whether it should ‘fill’ any apparent gap in the powers conferred, to make the scheme ‘workable’ or advance its aims. Treatment without consent, directed residence, restraint or manhandling, detention, transportation, and compulsory readmission to hospital – all implicate basic rights. They affect personal liberty or autonomy, bodily integrity, personal privacy, quiet enjoyment of one’s residence, freedom of movement and association, and so on – rights mostly long protected by the common law, and now firmly protected by statutory and international human rights instruments as well. In these circumstances, there is usually no room to read ‘implied powers’ into the statutory scheme to expand the authority expressly conferred. No penumbra of powers would usually be recognised, in light of the obvious impact on rights.14
Nevertheless, it might occasionally be legitimate for a court to conclude that certain ‘interstitial’ powers were already conferred by ‘necessary implication’ from the texture (if not quite the text) of the powers expressly established by the statutory scheme. The power to ‘take’ might include a power to put a person in an ambulance. Or the power to ‘treat’ might imply a power to monitor and observe the consequences of treatment, for a short time. Nevertheless, the distinction between powers conferred by necessary implication and those whose discovery would ‘stretch’ the statutory scheme can be very fine indeed.
Two broad, competing approaches could properly be taken to such matters of interpretation in New Zealand – a purposive or a rights-driven approach. To identify those two approaches does little to solve the difficulties, however, firstly, because both approaches are difficult to apply in practice, and, secondly, because both can lead to different conclusions in the same case. The purposive approach is difficult to apply because the MHA – like most statutes – has more than one purpose. This is obvious from its Long Title, which says the Act is enacted ‘to
13 Guidelines to the Mental Health (Compulsory Assessment and Treatment) Act 1992 (Ministry of Health, Wellington, 2012).
14 On implied powers see Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015).
redefine the circumstances in which ... persons may be subjected to compulsory psychiatric assessment and treatment’ and ‘to define the rights of such persons and to provide better protection for those rights’. The Act is therefore intended to authorise compulsory treatment and protect patients’ rights. Either purpose could therefore be emphasized in its interpretation, but they could readily lead to different conclusions. Furthermore, the rights-driven approach can be equally ambiguous, because it is often unclear whether a certain intervention will reduce or promote a patient’s rights. It may reduce them in some respects and promote them in others, or reduce them in the short term and promote them in the longer term. Probably no single interpretive approach will therefore suffice. Much will depend on the character of the provisions under interpretation and the particular context in which coercion is proposed.
3. AN EXAMPLE OF A CONTROVERSY
The case of DBC 15 illustrates many of these points. It was heard by Judge C P Somerville, in the District Court in Invercargill. A key issue was whether the compulsory treatment of DBC should continue under an InpO or a CTO, when DBC was living in the community but the staff considered it necessary – to maintain his community tenure – that he should come to the hospital every four weeks to receive medication by injection, and stay there for three hours’ observation before being ‘permitted to leave’.16 To implement that approach, the staff thought they needed the authority conferred by an InpO, because, if a CTO were made instead, they would not be authorised to insist that DBC’s treatment should take place at a hospital, or to detain him there afterwards for observation.
DBC’s lawyer, on the other hand, called for the judge to make a CTO. He argued that a CTO could require DBC to accept periodic treatment at a hospital, and require him to remain there for observation. DBC could therefore be ‘treated adequately as an outpatient’,17 and in those circumstances the MHA required that a CTO – not an InpO – be made.18
Judge Somerville decided that a CTO could require that ‘the patient stays at a place for a particular period of time’ to receive treatment, and that place could be a hospital.19 It was still necessary to decide, however, whether a power existed
15 Southland Hospital Board v DBC  NZFC 1874.
16 Southland Hospital Board v DBC  NZFC 1874 at .
17 MHA, ss 28(2), 29(3).
18 Southland Hospital Board v DBC  NZFC 1874 at .
19 At .
to detain the patient afterwards for observation, if he tried to leave. Under the Act, only an InpO expressly authorised a compulsory patient’s detention in a hospital.20 Nevertheless, the judge held, a CTO could lawfully place a duty on the patient to stay ‘for a period of time’ at the place specified for their treatment in the CTO, and the patient was required to ‘accept that treatment’.21 Those duties, he held, could extend to the subsequent period of observation at the hospital, and could be enforced ‘by duress if necessary’.22 Those conclusions were reinforced, the judge considered, by the Act’s approval of treatment under a CTO ‘without the patient’s consent’, at the direction of the RC,23 and by the CTO being a form of Compulsory Treatment Order.24
The judge notes that, under the New Zealand Bill of Rights Act 1990 (NZBORA), everyone has the right not to be arbitrarily detained (section 22), and all legislation should be interpreted consistently with that right whenever possible (section 6). But, in DBC’s case, to read down the ambit of the CTO’s powers would lead to an InpO being made instead, to enforce the hospital attendance and observation requirements. That InpO would then be more restrictive of the patient’s liberty than a CTO, because it would authorise his detention in hospital, at the discretion of the RC, for a much longer period.
Overall, the judge therefore favoured an interpretation of the CTO regime that could require the patient to accept periodic treatment at a hospital but rendered him ‘liable to only 3 hours detention a month’.25 He issued a CTO in those terms, the clear implication being that the staff of the mental health unit of the hospital – designated as the treatment provider in the CTO – would be authorised to detain DBC at the hospital, by force if necessary, for the time required. That approach would be lawful, even under a Community Treatment Order, and would be less restrictive of the patient’s rights than subjecting him to more extended hospital care.
The judge’s reasoning therefore shows, firstly, how the mandatory character of a CTO is indicated in the MHA – through the combined effect of: statutory powers conferred on staff to direct the patient’s treatment; duties imposed on the patient to accept the treatment; and Parliament’s use of language that speaks to the order’s mandatory effect. In addition, the judge might have cited section 122B(3) that
20 MHA, s 113.
21 MHA, s 29.
22 Southland Hospital Board v DBC  NZFC 1874 at .
23 MHA, ss 58, 59.
24 MHA, s 28(1).
25 Southland Hospital Board v DBC  NZFC 1874 at .
expressly authorises use of reasonable force when treatment is being provided. Secondly, the decision shows the subtleties involved in determining the approach least restrictive of the patient’s rights. It requires a realistic assessment of the alternative courses of action likely to be followed by the staff, in the circumstances. For instance, would according the staff somewhat greater powers be more likely to encourage them to treat the patient in the community on a CTO, instead of keeping them longer in hospital? If so, conceding greater power to the CTO may – somewhat paradoxically – be a less restrictive approach.
In effect, in DBC’s circumstances, Judge Somerville found that periodic hospital-based treatment, followed by observation, plus a short period of detention for those purposes, was authorised by ‘necessary implication’ from the structure and language of the Act. Arguably, to reach that conclusion, the judge did not have to rely on any notion of ‘implied powers’. Nor did he ‘stretch’ the Act to fit its apparent aims. Instead, he may have correctly concluded that legal authority of the kind contemplated was already implicit in the full set of powers and duties conferred.
The case did not, however, determine the maximum length of detention that might be permitted in this situation. In another patient’s circumstances, overnight observation might be authorised, such as when the staff thought it absolutely necessary to deliver ‘appropriate treatment’ and observe the patient afterwards for their safety. Perhaps that might be lawful where the CTO specifies the hospital as the place of treatment; this would be the least restrictive approach; and only reasonable force is used to keep the patient in hospital. Where a patient has demonstrated a particularly rapid or dangerous ‘relapse profile’ in the past, or might experience a specially adverse reaction to treatment calling for close observation, overnight admission might possibly be permitted, to deliver treatment safely, without having to invoke the formal recall power.26
Beyond such brief hospital stays specified in the order, however, detention in hospital is probably not authorised by a CTO unless the recall power is used. That separate power is specially provided to return a patient to hospital for treatment. Its use is subject to special requirements, as to both criteria and process.27 The purpose of those requirements is to protect patients’ rights, by reducing the prospect of ‘arbitrary’ detention in hospital. Generally, those requirements should not be subverted by permitting patients to be detained in hospital without the need to invoke the recall power.
26 Under MHA, s 29(3).
27 MHA, s 29(3).
4. HOW THE POWERS ARE CONFERRED BY THE MHA
We can now sum up the mechanisms used in the MHA to express the authority conferred by a CTO, the ‘totality’ of which indicates the scope of the order’s authority, as demonstrated by the judge’s reasoning in DBC. Parliament has indicated the scope of the power conferred in the following ways:
On the other hand, the MHA also creates clear distinctions between the consequences of a CTO and those of an InpO. In particular, no general power is conferred to detain patients on CTOs, though such a power is conferred over patients under compulsory inpatient assessment or an InpO.30 Moreover, for patients on InpOs, a specific place is designated for their detention. They may be detained in a ‘hospital’31 (with no separate power being expressly granted to authorise their detention in a community facility when granted ‘leave’).32 A clear distinction is therefore created in this regard between the legal position of patients under compulsory inpatient care and the position of patients on CTOs: the former can be detained continuously, while the latter can only be detained in
28 MHA, s 41.
29 MHA, s 122B.
30 MHA, s 113.
31 MHA, ss 113(2), (3).
32 Any power to direct the detention – say, in a rest home – of a compulsory inpatient on leave must therefore come from the RC’s power to grant leave on such conditions as they think fit: see Waitemata District Health Board v CB (2005) 25 FRNZ 709 (DC).
limited circumstances, or when certain processes are activated, such as recall to hospital from a CTO.
Furthermore, it is significant that the powers are generally conveyed in discretionary terms. The staff or Police ‘may’ enter, ‘may’ take, ‘may’ recall the patient to hospital, and so on. Thus, not every power that could be used should be used. All powers should be exercised consistently with the therapeutic and preventive purposes of the CTO regime. The powers should not be exercised solely to suit the operational imperatives or convenience of the mental health services. Their exercise should promote compulsory patients’ rights under Part 6 of the MHA, including their right to ‘receive appropriate treatment’33 and maintain ties with their family or whānau as far as possible.34 Moreover, rights conferred by other legislation, such as the NZBORA, should be respected, unless that would frustrate the purposes of the MHA.35
Finally, use of these powers should meet the principle of proportionality – a general principle of human rights law.36 Compliance with this principle requires staff to ask themselves: are the reasons for using this power sufficiently compelling, in light of the potential impact on the patient’s rights; is this intervention likely to achieve the desired ends; would less drastic means suffice? Overall, they must consider whether the intervention would constitute a proportionate limit on rights. All those matters should be assessed before the staff exercise their discretion to intervene.
5. OTHER EMERGENCY POWERS OR JUSTIFICATIONS RECOGNISED BY LAW
The provisions of the MHA on CTOs are not the only possible sources of authority or justification for intervention in the life of a person on such an order, however. Some other powers or justifications may also be available, particularly in an emergency, derived from other sources of law.
Any person – which obviously includes clinicians or the Police – may rely on the common law justification of necessity to intervene, using ‘reasonable force’ if
33 MHA, s 66.
34 MHA, ss 5, 7A, 65.
35 NZBORA, s 4.
36 Richard Clayton and Hugh Tomlinson (eds) The Law of Human Rights (2nd ed, Oxford University Press, Oxford, 2009) at ch 6D; John Dawson “Compulsory Outpatient Treatment and the Calculus of Human Rights” in Bernadette McSherry and Penelope Weller (eds) Rethinking Rights-Based Mental Health Laws (Hart Publishing, Oxford, 2010) 327.
necessary, to prevent a ‘mentally disordered’ person causing immediate harm to themselves or others.37 Or, in similar situations, a person may rely on one of the justifications for emergency intervention codified in Part 3 of the Crimes Act 1961, such as that permitting intervention to prevent suicide.38 Those justifications even permit action to prevent imminent harm to property.39 Alternatively, the Police might invoke their general power to arrest a ‘mentally disordered person’ found ‘wandering at large’ in a ‘public place’,40 or their power to detain an intoxicated person.41 They might exercise their power to enter any premises, to prevent imminent harm to any person, under section 14 of the Search and Surveillance Act 2012. Or they might arrest a person – ‘mentally disordered’ or not – whom they suspect of having breached the criminal law, to forestall further harm. Furthermore, health professionals dealing with a person in a crisis, who are unaware that the person is on a CTO, could set in motion the compulsory assessment process at the front end of the civil commitment regime.42 All these other powers and justifications exist as a means to manage a psychiatric emergency. They supplement the MHA provisions directly concerned with managing compulsory patients’ outpatient care.
Nevertheless, most of those additional powers or justifications apply only in emergencies. As a consequence, they may not authorise health professionals’ attempts to intervene at an earlier stage in events, to prevent an emergency arising. In those preventive circumstances, therefore, the CTO provisions have special purchase. After all, a major purpose of the CTO regime is to prevent psychiatric emergencies. Staff treating patients on CTOs will often wish to take pre-emptive action to assist a patient with a certain psychiatric history or ‘relapse profile’, by intervening before failure to take treatment as directed results in relapse into acute illness. In those circumstances, when preventive action is taken, no imminent threat of harm may exist to any person. So no psychiatric emergency may exist. Then the only powers available might be those conferred by a CTO.
37 John Dawson “The Law of Emergency Psychiatric Detention”
 NZ Law Review 275.
38 Crimes Act 1961, s 41.
39 Crimes Act 1961, ss 52-56.
40 MHA, s 109.
41 Policing Act 2008, s 36.
42 MHA, Part 1.
6. RESTRAINT DURING ADMINISTRATION OF TREATMENT OUTSIDE HOSPITAL
To come to our first grey area then: would it be lawful for members of a community mental health team, designated in the CTO as responsible for the patient’s treatment – assisted possibly by the Police – to physically restrain a CTO patient to administer treatment outside hospital? Could the patient ever be restrained, by nurses or the Police, at the specified place of treatment, during administration of an injection, for example? The spectre of patients being ‘held down and injected in their own living room’ hangs over the CTO regime. Would that ever be lawful?
6.1 The Scope of ‘Treatment for Mental Disorder’
The decisions of the courts have clarified certain propositions concerning the scope of ‘treatment for mental disorder’ – the kind of treatment authorised by the MHA. First, the courts say, this concept should not be narrowly construed. It extends to all treatment designed to ameliorate the symptoms and consequences of the patient’s mental disorder. It ‘need not be pharmacological’, but ‘may consist of nursing care, psychotherapy, counselling, occupational therapy or rehabilitation’.43 It may:44
... include all the remedies which mental health professionals – be they psychiatrists, psychologists, social workers, nurses, or occupational therapists – have available to them to manage mental illness. ... [It may involve] assisting the patient to live in the community at their best level of functioning ... [or] taking them to the point where their psychotic symptoms are reduced as far as possible, and relapses are minimized. ... [I]t ... may be achieved through discussion and counselling; it may be assisted by social interaction; it may come about as a result of a change or increase in medication ... But all are valid forms of treatment.
Any measures of that kind could therefore be included in a CTO treatment plan, and it would be legitimate for staff to consider breach of such treatment conditions a strong indicator that the patient could be lawfully recalled to hospital.
Secondly, the MHA clearly authorises treatment of compulsory patients without their consent, including patients on CTOs (provided the necessary second opinion on certain forms of treatment is obtained, when required).45 A cluster of the Act’s
43 Canterbury District Health Board v MH  NZFC 4432, 
NZFLR 312 at – ; Department of Health v D (1999) 18 FRNZ
233 (FC) at 240.
44 Capital Coast Health Ltd v R  NZFLR 838 (DC) at 844.
45 On the second opinion regime see John Dawson, Pete Ellis, Paul Glue, Jessie Lenagh-Glue,
provisions make it quite plain that employees of the designated health service, working under the direction of the RC, can treat a CTO patient ‘for mental disorder’ without their consent. There is the name of the order of which the CTO is a variant: a Compulsory Treatment Order. There is the rule in section 29(1) that a CTO ‘shall require the patient to attend for treatment and ... to accept that treatment’. There is the statement in Part 5 of the Act, specifically governing treatment, that ‘a patient may refuse consent to any form of treatment for mental disorder, except as provided in this Part’.46 Plus there is the statement in that Part that the patient is ‘required to accept such treatment for mental disorder as the Responsible Clinician shall direct’ (subject to completion of the second opinion requirements).47 Section 59(4) adds that the RC ‘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’ (italics added, in all these quotations).
The consent of CTO patients to their treatment should therefore be sought. They have rights to receive information about their treatment48 and receive appropriate treatment.49 They are entitled to the benefit of the second opinion process. They can – in principle – seek an independent psychiatric opinion on their condition.50 They are entitled to the benefit of regular reviews of their compulsory status, including reviews by the District Court or Review Tribunal. But, provided proper processes have been followed and second opinions obtained as required, compulsory patients do not have the right to refuse treatment for mental disorder directed by their RC.
The combined effect of those provisions – calling the order compulsory; placing duties on the patient; conferring powers on staff; repeatedly referring to treatment without consent – is irresistible. Even in the face of sections 6 and 11 of the NZBORA saying legislation should be given a meaning that supports a person’s right to refuse treatment where it ‘can’ be given that meaning, the inference is too great to resist – that the treatment clauses of the MHA carve out an exception to the patient’s usual right to refuse. This is especially so when the Act specifies who
David Goldsmith and Don Smith “Mandatory Second Opinions on Compulsory
Treatment” in John Dawson and Kris Gledhill (eds)
above n 1 at 229; John
Dawson, Paul Glue, Pete Ellis, Jessie Lenagh-Glue, David Goldsmith and Don Smith
“Lessons from Export
to New Zealand of the Second Opinion Appointed Doctor
Scheme” (2015) 39 Psychiatric Bulletin 69.
46 MHA, s 57.
47 MHA, ss 58, 59.
48 MHA, s 67.
49 MHA, s 66.
50 MHA, s 69.
holds the relevant treatment powers – employees of the health service named in the order.
6.2 What of Restraint During Lawful Treatment?
But are these provisions sufficient to authorise use of physical restraint, or forcible manhandling of a patient, during administration of treatment outside hospital? Here we need to distinguish between the powers conferred on health professionals treating the patient, and those conferred on DAOs and the Police. Their respective powers are different, though they may act in concert, and, in some cases, a health professional – such as a community nurse – will be both ‘treating the patient’ and be appointed as a DAO, so could exercise powers under both hats.
6.3 What Might Restraint During Treatment Involve?
Physical restraint of a patient during treatment would seem to involve both their detention and their manhandling simultaneously, plus denial of their right to refuse treatment. It is a major intrusion on the person that would usually be most unwelcome – an affront to their dignity that clearly goes beyond the mere concept of ‘treatment’.
When a patient is restrained during treatment, the element of detention may be brief, but clearly they are ‘not free to leave’51 during that time, and, in light of the associated intrusion on their person of forced treatment, it could not be described as a ‘trivial’ or ‘insignificant’ form of detention.52 This is surely a ‘substantial’ interference with liberty. It is nothing like the minor limit on liberty involved in being confined while one’s passport or luggage is checked at the border,53 or while one is stopped and required to blow into a breathalyser by the traffic police54 – which are not considered detention at all. Being ‘held down’ during an injection is much more intrusive than that, even if the time involved is brief. In any case, the manhandling of the patient alone would constitute the crime of assault or the tort of trespass to the person (a battery) unless authorised or justified. Thus, in light of the impact on rights, to be lawful, restraint during treatment in the community would need to be very clearly authorised or justified by law.
51 R v M  1 NZLR 242 at 245 (CA).
52 R v Grant  SCC 32.
53 R v Bynon-Powell  NZCA 400;  NZAR 157 (CA); R v Monney (1999) 171 DLR (4th) 1 (SCC).
54 Temese v Police  NZCA 190; (1992) 9 CRNZ 425 (CA); R v Casey  NZCA 335.
6.4 The Powers Available The relevant powers are as follows:
A demanding question, then, is whether those powers, singly or in combination, would ever authorise the physical restraint of a CTO patient during provision of treatment in a community setting.
6.5 The Positions of the DAO and the Police
The DAO’s powers extend only to ‘taking’ the patient to the place of treatment, and using reasonable force, in an emergency, for that purpose. That power to ‘take’ would not authorise the DAO to restrain a patient during administration of treatment, however. That is not ‘taking’. The official Guidelines for DAOs therefore say it ‘will normally be appropriate’ for them ‘to use minimal force’ when exercising their powers, such as ‘light or non-painful touching ... to guide a person towards a building or room or help a person into or out of a vehicle’.62 But a DAO – in that capacity – is not responsible for treatment of the patient.
55 MHA, s 40(2)(a).
56 MHA, s 41(1).
57 MHA s 41(2).
58 MHA, s 41(5)(a).
59 MHA, s 41(5)(b).
60 MHA, s 122B(1), (2).
61 MHA, s 122B(3).
62 Guidelines for the Role and Function of DAOs (Ministry of Health, Wellington, 2012) at 12-13.
The position of the Police is more difficult. In narrowly-specified circumstances, when the Police have been called to assist the DAO, have entered, and have taken the patient to the specified place of treatment, the Police are expressly authorised to ‘detain the ... patient at the place for the shorter of ... 6 hours’ and ‘the time it takes to conduct ... treatment in accordance with the community treatment order’. Moreover, ‘in an emergency’, they can use reasonable force for that purpose (italics again added). Would those provisions ever permit the Police to enter the specified place of treatment – say, a boarding house – and restrain the patient while the nurse responsible administered an injection prescribed by the RC? Perhaps that might be permitted, in a genuine emergency, where: the patient posed an immediate threat of serious harm to themselves or others; the treatment was in the patient’s best interests; and there was no less restrictive way of handling the crisis. But emergency intervention of that kind, using only reasonable force, would usually be covered by the common law justification of necessity, in any case. So there may be no need for the Police to rely on any additional statutory power to ‘detain’ the patient ‘at the place’ and use ‘reasonable force’. The common law would already provide a defence to any proceedings against them – in that emergency situation.63
In the absence of an immediate emergency, however, the position would seem to be different. The Police might then have to rely solely on their power to ‘detain ... at the place for ... the time it takes to conduct ... treatment in accordance with’ the CTO, and they would not have the benefit of the provision that authorises use of reasonable force, as that provision only applies ‘in an emergency’. In that situation, I suggest it would not – fortunately – be lawful for the Police to restrain a patient during administration of treatment. The intention of the relevant provision, which authorises the Police to intervene at the request of the DAO, is – I suggest – only to authorise the Police to confine the person at the place of treatment, by preventing them leaving, while health professionals engage with the patient in treatment. And even that Police power exists only in limited circumstances – when the patient has been ‘refusing to attend’ and been ‘taken’ to the place of treatment by the Police, at the request of the DAO.
That conclusion is consistent with the fact that – absent an emergency – the statute only confers on ‘a person treating’ the patient an express power to use reasonable force when delivering treatment. That power does not extend to the Police. They are not ‘treating’ the patient. They are not employees of the health service named in the order as having that responsibility. Nor are they trained to engage in the safe restraint of a patient during treatment.
63 To similar effect is the power granted doctors to administer a sedative injection during an emergency assessment under the MHA: ss 110A, 110C.
The Act therefore establishes a proper division of labour between the two professional groups. Forcible entry, transportation of resisting patients, confinement at the specified place, are matters for the Police, in certain situations. Treatment is for clinicians.
6.6 The Position of Health Professionals Providing Treatment in the Community
Would it then be lawful for clinicians who are ‘treating’ the patient, under the direction of the RC, to use ‘duress’, or detain or restrain a patient, in a community setting, when administering treatment under the CTO? That too is most doubtful. Firstly, forceful intervention of that kind would probably not be considered a safe health practice, for either the patient or the staff. So it could not constitute ‘appropriate medical treatment’, to which the patient has a statutory right.64 Nor would it seem ‘reasonably necessary in the circumstances’ to use such force when either the CTO could specify the hospital as the place of treatment (as decided in DBC), or the recall power could be used to take the patient to hospital for treatment.
There might be two exceptions, when restraint of a CTO patient outside hospital during treatment by trained health professionals would be lawful. The first would be when an immediate emergency exists, as discussed regarding the Police. The second might be when it takes place in a properly-staffed and -supervised community clinic that has equivalent facilities to a hospital, and involves less restriction on the patient’s liberties than returning them to hospital. The hospital might be several hours’ drive away. Taking the patient there might involve greater restrictions, or more serious threats to their safety.65 If a health service of the right quality and intensity is available in a ‘community’ clinic, closer to the patient’s residence, perhaps it should be used.
Except in those two situations, however – where the treatment is delivered in an emergency or at a clinic with the necessary quality of services – there is no reason to think a CTO authorises anything beyond ‘minimal’ use of force during administration of treatment outside hospital. Clinicians are probably permitted to treat patients without consent in the community if the treatment is ‘administered without the use of more force than would be required if the person had consented’, as the New South Wales legislation puts it.66 They might use the limited degree of
64 MHA, s 66.
65 See the facts of Innes v Wong  NZHC 187;  3 NZLR 238 (HC), where they
patient died from ‘positional asphyxiation’ during lengthy
transportation to hospital.
66 Mental Health Act 2007 (NSW), s 57(3).
force necessary to insert a needle, to administer an injection, where the patient is neither objecting nor consenting. But actual restraint of the patient – by nurses, for instance – would need to be very clearly authorised by legislation to be permitted. That is not a step the law should take, in my view, due to the disproportionate impact on patients’ rights.
7. DIRECTED RESIDENCE
Another difficult question is whether a CTO patient can be required to remain, for certain periods, in a particular community residence or environment – one that provides a certain kind of programme, support or supervision – as an aspect of their community treatment plan.67 Could a CTO patient be directed to attend a day programme at a community facility for, say, eight hours a day, Monday to Friday; or be directed to remain at a specified rest home every night between 6pm and 8am? Can they be put under a curfew, if the staff consider night-time supervision essential to prevent their further hospitalisation, or further offending likely to lead to imprisonment? Can a CTO authorise de facto detention in a community facility, in other words, if a convincing case can be made that even greater restrictions would otherwise be imposed on the patient’s freedom?
From the courts’ decisions on aspects of this matter, certain propositions are clear. It is not unlawful to include conditions about monitoring or supervision of the patient’s whereabouts as conditions of ‘treatment’ under the CTO where the staff consider a high degree of oversight or support is required to keep the patient in the community. This might mean that a certain ‘level’ of accommodation is specified (eg, ‘Level 3’, requiring 24 hr presence of a qualified nurse). Conditions of that kind can be considered legitimate aspects of the requirements imposed on the patient to ‘attend’ at a specified place and ‘accept’ treatment for mental disorder.68 Furthermore, a requirement to live even at a named community residence can be included in the CTO with the consent of the patient (who might be quite willing to consent, to obtain the benefit of the CTO as opposed to continuing inpatient care). Failure to comply with such conditions could then be viewed by the RC as an indicator that ‘the patient cannot continue to be treated adequately as an outpatient’,69 triggering the recall power – the main enforcement mechanism available.
67 John Dawson and Richard O’Reilly “Residence Conditions on
Community Treatment Orders” (2015) 60 Canadian Journal
68 Department of Health v D (1999) 18 FRNZ 233 (FC) at 240.
69 MHA, s 29(3).
Nevertheless, there are few powers available to directly enforce such residence requirements. There is no general power to detain a patient on a CTO in a community residence, or to keep them in secure rest home care. Nor – except in an immediate emergency – do the staff of such a residence, or the Police, or neighbours, or the patient’s family, or members of the public, have any general authority to ‘take and return’ the patient to the residence, over their objection, should they leave – especially when those persons are not employees of the health service named in the CTO as responsible for the patient’s treatment.
A CTO can require a patient to ‘attend’ for a certain period at a specified place for treatment, and that place could be a certain community residence. The DAO (with Police assistance, if required) can ‘take’ the patient to that place for treatment to proceed. And the Police, in certain circumstances, can ‘detain’ the patient there while treatment is conducted. But none of that authorises the patient’s continuing detention (or ‘full-time attendance’) in that residence – especially when even the Police are only authorised to detain the patient there, for treatment purposes, for a maximum of six hours. As Judge Robinson decided in D, a CTO does not authorise ‘house arrest’.70 Nevertheless, it is not ‘detention’ to require the patient to keep in contact with the staff of the relevant residence, or ‘to make their whereabouts known’. That can be considered a legitimate aspect of monitoring the conditions set for the patient’s community care.
Under these principles, it might be lawful to require the patient to attend for a number of hours, on several days a week, at a certain community programme, day hospital or clinic. That requirement might, in principle, be enforced by a DAO (and the Police). But longer periods of confinement, such as a mandatory overnight curfew, not agreed to by the patient, or a long period kept behind locked doors, would not seem to be authorised by a CTO.
Parliament might have clearly authorised community detention of that kind under the CTO regime – though there are risks in authorising detention of vulnerable people in (what might turn out to be) sub-standard environments not subject to proper quality control. Parliament did not authorise that, however. In particular, it provided no direct means of enforcing such detention, in the Act.71 What Parliament did provide is a power to recall the patient to hospital if the conditions are no longer adequate for their community care.
There are some other mechanisms that can be used to direct a person’s full-time residence. Where a person lacks the capacity to decide where they should
70 Department of Health v D (1999) 18 FRNZ 233 (FC) at 239.
71 Department of Health v D (1999) 18 FRNZ 233 (FC) at 244.
live, a residential placement order can be obtained from the Family Court under section 10 of the Protection of Personal and Property Rights Act 1988 (combined perhaps with further directions, under section 10(4), about the order’s enforcement).72 Alternatively, it was held in CB73 that, where a person has be placed under an InpO under the MHA, their RC can place them on ‘leave’, for up to six months, on the condition that they remain in secure community care. The correctness of that decision might be doubted, in the absence of any express power provided in the Act to detain inpatients on leave. But perhaps directing secure residential placement in that way would constitute a legitimate exercise of the RC’s discretion to set the conditions of ‘inpatient leave’ if the outcome was less restrictive for the person than continuing hospital care.
The Guidelines to the Act sum up the position as follows:74
A [CTO] treatment plan may include a specific residence requirement, but this does not amount to a power to detain at the residence... [A] community treatment order is not a basis for de facto detention in a community facility.
8. PREVENTIVE RECALL TO HOSPITAL
A third grey area concerns recall to hospital of a CTO patient who is not accepting treatment in the community, as directed by their RC, but is not so unwell that the situation would be considered a psychiatric emergency. Is preventive recall lawful then?
Section 29(3) says recall may proceed when the RC ‘considers that the patient cannot continue to be treated adequately as an outpatient’. Turning this around, we could say recall can occur: when the patient needs treatment in a hospital. There would seem to be two main situations in which that would apply: firstly, when the patient needs treatment in hospital due to the severity of their current clinical condition; and, secondly, when hospital treatment is needed to prevent predicted, future serious decline in their condition. The latter situation, particularly, would be an example of preventive recall.
When directing a patient’s recall, the RC must choose between two mechanisms. Either the RC may direct the patient to be ‘treated as an inpatient’ for up to 14
72 See the conditions imposed in Loli v MWY unreported
73 Waitemata District Health Board v CB (2005) 25 FRNZ 709 (DC).
74 Guidelines to the Mental Health (Compulsory Assessment and Treatment) Act, above n 13 at [6.1]-[6.2].
days, using section 29(3)(a). That approach does not cancel the CTO. The order continues to run while the patient is in hospital. Alternatively, the RC may direct the patient to re-enter the compulsory assessment process, using section 29(3)(b).75 That direction cancels the CTO and deems the patient to be under compulsory inpatient assessment instead.
Where the first of those two options is taken, the Act provides no express power to detain the patient during their treatment as an inpatient (for up to 14 days). The express power that section 113 confers on ‘the person in charge of the hospital’, to ‘take all reasonable steps to detain’ a compulsory inpatient, does not strictly apply in that situation. Section 113 extends only to patients under compulsory inpatient assessment or an InPO. Patients recalled for 14 days from a CTO, under section 29(3)(a), are not in either of those categories. So the power conferred by section 113 does not strictly apply. Nevertheless, the statement in section 29(3)(a) that, on recall, a patient on a CTO may ‘be treated as an inpatient’ for up to 14 days, may be an example of a situation in which their detention is authorised by ‘necessary implication’ from the Act as a whole. That CTO patients can be detained on such recall for up to 14 days clearly seems the intention. They could then be treated ‘as if’ they were compulsory inpatients covered by section 113, permitting the person in charge of the hospital to keep them detained.
Whichever recall option is used, the patient can be switched back to compulsory outpatient care swiftly, either by the RC reversing the decision to recall them to hospital or by permitting the patient’s compulsory assessment to continue on an outpatient basis. By using some combination of these mechanisms, the RC may therefore direct a CTO patient’s brief, overnight recall to hospital, to ensure treatment, followed by their rapid return to compulsory outpatient care.
Nevertheless, recall of a patient involves their re-detention in hospital (albeit briefly in some cases). Thus it is subject to the legal limits placed on all forms of detention. It should never be ‘arbitrary’. The decision should be made on principled and predictable grounds. Decisions of the European Court of Human Rights on the equivalent process have held, for instance, that all forms of civil detention in a psychiatric hospital must be based on objective medical assessment of the patient’s condition, and their condition must be of sufficient severity to justify their involuntary hospitalisation.76
75 In either case the patient is entitled to request a further hearing before the District (or Family) Court concerning their compulsory status: s 29(4)(c).
76 Winterwerp v The Netherlands (A/33)  ECHR 4; (1979-80) 2 EHRR 387; X v UK (App No 7215/75)  ECHR 6; (1982) 4 EHRR 188.
None of this means, though, that a CTO patient must need extended hospital care for their recall to be lawful. What is required is that the patient’s condition currently needs treatment in a hospital (and not as an outpatient). There could be several reasons why that is needed. There could be a sudden change in the availability of services in the community, meaning adequate outpatient services no longer existed. Or the patient could require treatment or observation at a level of quality, or intensity, that was only available in hospital. Or they may urgently require treatment that could only be lawfully administered in hospital (as discussed above). Those would all seem to be legitimate reasons why a patient ‘cannot continue to be treated adequately as an outpatient’. This would not require an immediate emergency to exist, or the patient to be acutely unwell at the time of recall. Failure to accept prescribed outpatient treatment could be a sufficient reason when the RC could responsibly predict that it would soon lead the patient to relapse into a more severe state of illness, with associated risk of harm.
In that situation, the RC should probably follow the principle stated in the legislation for England and Wales; that is, to consider:77
... having regard to the patient’s history of mental disorder ... what risk there would be of a deterioration of the patient’s condition if he were not detained in a hospital (as a result, for example, of his refusing or neglecting to take the medical treatment he requires for his mental disorder).
Situations in which preventive recall might properly occur would include those in which a patient had previously demonstrated one or more of the following: a pattern of rapid relapse; repeated or prolonged episodes of illness; severe consequences during relapse, such as serious violence to self or others; or early loss of insight, leading to inability to take the steps required to prevent severe deterioration. What is required, above all, is a sufficiently convincing prediction of the probabilities of relapse and the seriousness of the likely consequences.
CONCLUSION: THE INTERPRETATION OF MENTAL HEALTH LEGISLATION
This survey of the boundaries of a CTO’s powers brings out certain features of our mental health laws. First, it reveals the combination of measures that sets the scope of the powers conferred. It is the joint effect of the language of compulsion; express powers conferred on certain professionals; duties placed on the patient;
77 Mental Health Act 1983 (UK), s 17A(6).
explicit references to treatment without consent; permission to use reasonable force; and granting clinicians significant elements of discretion – that delineates the authority conferred.
Secondly, this material shows how some powers are conferred only on certain categories of professionals, and not on others, or conferred only in ‘emergencies’, not otherwise. Those features of the Act must be considered deliberate. They reflect Parliament’s views as to the proper division of labour between the professional groups, based on their respective areas of expertise, and they reflect the fact that more intrusive interventions can be justified in emergencies, as has long been recognised by the doctrine of necessity under the common law.
In practice, many difficult situations can be resolved by the members of the different professions acting together. And those professionals can in turn rely on several different sources of law, including policing legislation, defences to tort and crime, and exceptions to human rights principles – plus the express powers provided by the MHA. Not every fine-grained aspect of the relevant powers is codified in legislation. Some powers must be explicated from broadly-phrased provisions, others must be derived from the common law. There is nothing unique about this. It simply reflects general features of our public law.
Nevertheless, there are certain boundaries that have not been crossed by Parliament in constructing the relevant powers. Except in immediate emergencies perhaps, Parliament has not authorised the physical restraint of a CTO patient during administration of treatment outside a properly-staffed hospital or clinic. Generally, it has not authorised health professionals to break down doors. Nor has it authorised the full-time detention of a CTO patient in a community residence. New Zealand has one of the most powerful CTO regimes in the world.78 It is one of the few, for instance, that gives health professionals the power to enter a patient’s own residence to provide treatment.79 Nevertheless, some important boundaries are respected, so as not to impose a disproportionate impact on patients’ rights.
Finally, this material carries important messages about the interpretation of mental health legislation in general. It shows that in difficult cases no single interpretive approach will suffice. The purposive approach will not usually be definitive. This is because mental health legislation has many conflicting purposes, between which choices must be made. In D’s case, for example, concerning full-time
78 John Dawson “Community Treatment Order Legislation in the
Commonwealth” in Andrew Molodynski, Jorun Rugkasa and Tom
Coercion in Community Mental Health Care (Oxford University Press,
Oxford, 2016) (forthcoming).
79 MHA, s 29(2).
community residence, we could say that the purpose of the law was to ensure that the conditions were suitable for D’s successful community care. Or we could say that the law’s purpose was to protect D’s liberty and freedom of movement by not subjecting him to house arrest. Both are plausible views but they lead to opposite conclusions.
The rights-driven approach is not definitive either, because, again, different views can be taken of what promotes patients’ rights. To read into the MHA an implied power to detain a patient on ‘leave’ in a community facility, for instance, could be viewed as reducing the restrictions imposed on their liberty in the short term, if it gives them more freedom than they would otherwise have in hospital (especially if living on a secure forensic ward). Or detaining a patient in a community facility could be viewed as imposing greater limits on their rights in the longer term, if their secure community care was to continue indefinitely, beyond the time at which they would otherwise have been discharged fully from hospital to voluntary care. Such controversies are not resolved simply by reference to ‘rights’.
Both the purposive and the rights-driven approach are likely to prove indeterminate, therefore, in cases at the margins of the powers. Nevertheless, the apparent purposes of the legislation, and the apparent impact on rights, are certainly part of the interpretive mix. In particular, the proportionality of any impact on rights must be considered. How serious is the impact of a particular power? What impact can be justified, in light of the importance of the aims pursued? Would less restrictive measures suffice? That calculus of proportionality must be gone through. But, under that calculus, significant impacts on rights can still be justified when that would forestall really serious harm.
In practice, good interpretation therefore proceeds on several dimensions – purposive, rights-related, linguistic, and contextual. Many factors are relevant. The full statutory framework must be studied, against a backdrop of common law. Careful attention must be paid to the language in which express powers and duties are conferred, to consider the meaning the words can properly bear (‘take’ cannot properly mean ‘treat’, for instance). When an ‘implied power’ – whose existence is contemplated in a particular instance – has been expressly granted only in some other instance, that will be highly relevant. Parliament’s sculpting of the powers in that way will often suggest that it did not intend to grant an equivalent power in the instance that is not squarely covered.
Moreover, an informed and realistic assessment is required of the alternative courses of conduct the staff are likely to pursue should they be granted certain powers or not. If a certain power is not available, they may use another power instead that may be even more intrusive on rights. To interpret a particular power
based on the formula that ‘more power = less rights’ may therefore be simplistic – when, for instance, de-powering the CTO might lead to more extensive use of compulsory hospital care. In certain situations, producing less restrictive outcomes may require more extensive powers to be recognised, not less extensive ones. It may even on occasion require recognition of certain ‘interstitial’ powers, conferred by ‘necessary implication’ from the statutory scheme. Parliament cannot be expected to fill every crack in the scope of the powers conferred. Some additional interpretive work is surely required.
When the interpreter is in genuine doubt, however, they should err in favour of ‘no power’. That approach advances the important constitutional principle that any power or justification that might be relied upon to limit people’s rights must be clearly conferred by law. For an interpreter, including a court, to reach that conclusion does not freeze the law in a certain shape, after all. It leaves Parliament with the option of changing the legislation – should it think fit – to confer the relevant power.