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Winders, Max --- "New Zealand's Mental Health Act in practice edited by Professor John Dawson and Kris Gledhill" [2013] OtaLawRw 10; (2013) 12 Otago LR 203

Last Updated: 23 April 2015

203

^{New Zealand’s Mental Health Act in Practice}

(edited by Professor John Dawson and Kris Gledhill, Victoria

^{University Press, 2013)}

Much of actual mental health practice is enigmatic. That is true for both the professionals and the consumers involved in the process. Medical professional and patient consultations and patient reviews, lawyer and client consultations and instructions, Family Court and Mental Health Review Tribunal Hearings and District Inspector Investigations are all conducted privately. There is little opportunity for one professional (legal or medical) to observe the practice of another. Similarly, there is little opportunity for a consumer or proposed patient to assay their expectations and experiences of mental health practice.

Prior to being appointed a District Inspector, I represented proposed and current patients, and was thoroughly inculcated in the adversarial process. Balancing the demands of professional obligations and ethics with attempting to preserve doctor/patient therapeutic alliance in the inquisitorial process was and continues to be demanding. It was only later that I realised that the other professionals involved shared my ethical dilemmas.

I would have benefited much from chapters by Stephanie du Fresne on “The Role of the Responsible Clinician”, Brian McKenna and Anthony O’Brien on “Mental Health Nursing” and the “Mental Health Act”, Hinemoa Elder and Rees Tapsell on “Māori and the Mental Health Act” and Sarah Gordon in “The Recovery of Compulsory Assessment and Treatment”. Each provides insights absent in legal training and absent from readily accessible literature generally. Chapters by Nigel Dunlop and Kate Diesfeld on “The Mental Health Review Tribunal” and “Implicit Factors for Discharge by the Mental Health Review Tribunal” help illuminate an important but largely unknown forum whose jurisprudence remains regrettably difficult to access.

The editors say that the “...overall aim of the book is to provide a rounded portrait of the implementation of New Zealand’s compulsory assessment and treatment regime within its wider legal frame – a portrait drawn by clinicians and consumers, lawyers and officials, nurses and social scientists, Māori and non-Māori alike.”

New Zealand’s Mental Health Act in Practice provides insight into practice. It is not an exegesis of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or a guide to its statutory interpretation. Rather it comprises a series of thoughtful reform-targeted essays on areas of mental health practice by the involved practitioners. In as much, I disagree with the introductory statement that “It constitutes a thorough, non- governmental review of the workings of the Act.” Happily, the authors generally eschew the easy and uncontroversial aspects of stepping methodically section-by-section through the Act. The authors concentrate upon the interpretatively, ethically and practically vexed.

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Difficulties that arise in hard cases are critically examined. Those difficulties inherent in assessment of mental disorder as a legal rather than medical construct, whether personality disorders, intellectual disabilities or other cognitive impairments fit either construct, and the perennially contentious assessment of risk are examined. A cautionary theme emerges counselling against intervention by compulsion too readily on a parens patriae rather than individual liberty basis.

The authors’ own views as to negative or positive liberty are set out explicitly. Paul Mullen in “Personality Disorder and the Mental Health Act” recognises the potential for risk aversion in interpretative responses to reflect societal expectations rather than proper medical responses. John Dawson in “The Complex Meaning of ‘Mental Disorder ’”, Kris Gledhill in “Risk and Compulsion”, Matthew McKillop in “Seriously Diminished Capacity for Self-Care”, and Anthony Duncan in “The Intellectual Disability (Compulsory Care and Rehabilitation) Act” confront the effects of interpretative choice and the shift over time from an exclusionary to inclusionary response broadening the circumstances in which compulsion has been held justifiable.

The result, thus, goes further than the editors’ target. The book includes new statistical and critical analysis, suggested research and needed reform. One theme running through many of the authors’ chapters is the tension between an increasingly rights-based legal environment emphasising individual freedom, self determination and presumptive capacity to give informed consent which is belied in practice by apparently increasing use of compulsion in mental health treatment.

The Act’s attempt to balance competence and/or capacity against compulsion and a perceived broadening by the courts and the tribunal are directly addressed by Jeremy Skipworth who points out that tacit or explicit assent or agreement does not necessarily equate with the informed consent. The statutory protection of second psychiatric opinions absent consent was the recent subject of a multi-authored study, the findings of which are reproduced in chapter 13. The discovery of divergent processes within and between District Health Boards leads the authors to call for a standardised process.

Of further assistance, and surprisingly omitted from much of the case law, is discussion of the potential (if seldom encountered) impact of international instruments to which New Zealand is signatory. Alternative actual and proposed legislative responses to those outside the MH(CAT) Act are considered by Bill Atkin and Anna-Marie Skellern in “Adults with Incapacity: The PPPR Act” and Warren Young and Val Sim in “Reform of the Alcoholism and Drug Addiction Act”.

New Zealand’s Mental Health Act in Practice is an apt title for this new work. With the Law Foundation’s assistance, the editors have brought together the perspectives of some significant actors in the field. Chapters by non-lawyers are a welcome inclusion into what could incorrectly be assumed to be yet another monograph for lawyers. The audience

New Zealand’s Mental Health Act in Practice

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deserves to be much wider. This text will enlighten not only the legal and medical professionals involved in compulsory and non-compulsory treatment but also consumers and lay advocates.

Max Winders,

Barrister & District Inspector MH(CA&T) Act & ID(CC&R) Act, Dunedin.