"We have maintained a silence closely resembling stupidity" - Neil Roberts

Until we have legislation adopted into law to ensure fiduciary accountability and transparency in public affairs we will continue to have human rights breached because the existing crown immunity and lack of any independent oversight invites corruption to flourish.

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"We have maintained a silence closely resembling stupidity" - Neil Roberts

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Saturday, December 3, 2011



Mental Health Foundation of New Zealand December 2011


The Director of Mental Health has published six annual reports, which provide unprecedented narrative and statistics on compulsory processes in New Zealand’s mental health and addiction services. The Mental Health (Compulsory Assessment and Treatment) Act 1992, empowers the state to subject people with a mental disorder, who are deemed to be a serious danger to themselves or others, or who have a seriously diminished capacity to care for themselves, to compulsory assessment, followed, if deemed necessary, by compulsory treatment in hospital or in the community. There are a number of human rights concerns highlighted in this paper. They include the position on this issue taken by the New Convention on the Rights of Persons with Disabilities, the increase in the use of compulsory treatment in New Zealand in the last twenty years, the variation in rates between District Health Boards (DHBs), and the low rates of success people have in challenging their status through the available legal avenues.

Convention on the Rights of Persons with Disabilities
In 2006, the Convention on the Rights of Persons with Disabilities was passed by the United Nations and has since been ratified by the New Zealand Government. The Convention raises big questions about the legality of compulsory interventions in mental health which have yet to be seriously considered by the New Zealand Government.

Prior to the entrance into force of the Convention, the existence of a mental disability represented a lawful ground for deprivation of liberty and detention under international human rights law. The Convention radically departs from this approach by forbidding deprivation of liberty based on the existence of any disability, including mental or intellectual, as discriminatory. Article 14, paragraph 1 (b), of the Convention unambiguously states that ‘the existence of a disability shall in no case justify a deprivation of liberty’. Unlawful detention encompasses situations where the deprivation of liberty is grounded in the combination between a mental or intellectual disability and other elements such as dangerousness, or care and treatment. Since such measures are partly justified by the person’s disability, they are to be considered discriminatory and in violation of the prohibition of deprivation of liberty on the grounds of disability, and the right to liberty on an equal basis with others prescribed by article 14.

Legislation authorizing the institutionalization of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished. This must include the repeal of provisions authorizing institutionalization of persons with disabilities for their care and treatment without their free and informed consent, as well as provisions authorizing the preventive detention of persons with disabilities on grounds such as the likelihood of them posing a danger to themselves or others, in all cases in which such grounds of care, treatment and public security are linked in legislation to an apparent or diagnosed mental illness. This should not be interpreted to say that persons with disabilities cannot be lawfully subject to detention for care and treatment or to preventive detention, but that the legal grounds upon which restriction of liberty is determined must be de-linked from the disability and neutrally defined so as to apply to all persons on an equal basis.’ (United Nations Human Rights Council, 2009).


Trends over time
In 1954, 87.9 per 100,000 people were subject to compulsory interventions per month in New Zealand. By 1969 the rate had dropped to 70.1 per 100,000. Between 1969 and 1992 the numbers continued to decline. However, between 2005 and 2010 the rate rose to near 1954 levels. One of the Director’s Reports acknowledges that ‘the introduction of compulsory treatment in the community may have increased the rate of compulsory treatment’ (Ministry of Health, 2009, p 29). In the six years since the Director of Mental Health started his reports the number of the applications granted for all inpatient treatment orders increased by 23%, and the number of applications granted for community treatment orders increased by 32%.

Comparisons with other jurisdictions
New Zealand and parts of Australia have very high rates of compulsory community treatment compared to jurisdictions with these powers in North America and Europe (Lawton-Smith, 2006).

Comparisons between DHBs
There is a big variation between DHBs in the rates per 100,000 of people placed under compulsory treatment orders. For instance, in 2010 the rates of people on community treatment orders varied from 40 to 122 per 100,000, with an average of 77. In the same year the rates of people on compulsory inpatient orders varied from 1 to 33, with an average of 14. These variations are concerning and need further investigation.


Seclusion is defined as locking a person alone in a room they cannot exit without the agreement of the clinical staff. Seclusion is traumatising for most people subjected to it. There are programmes to reduce and eliminate seclusion in various countries including New Zealand. Overall, seclusion rates have stayed much the same since they were first included in the Director’s Reports in 2007 but some DHBs have significantly reduced their use of seclusion. Currently across the country around 17% of inpatients are placed in seclusion.

Ethnic and gender comparisons
The proportion of adults in inpatient units who are secluded varies considerably by ethnicity and gender. For instance, in 2010 28% of Maori male inpatients were secluded but only 17% of non-Maori males were secluded. Slightly more Maori females were secluded than non Maori males. This needs further investigation.

Comparisons between DHBs
There is a huge variation between DHBs in the rates per 100,000 of people placed in seclusion. For instance, in 2010 the rates of people placed in seclusion varied from around 15 to around 250 per 100,000. The Director’s Reports do not provide a robust explanation for this variation.

Office of the Ombudsmen
The Office of the Ombudsmen found a case of potential cruel and inhumane treatment in a mental health patient who had been in virtually constant restraint and seclusion for six years (Ombudsmen, 2009). In response the Director of Mental Health responded he was ordering an urgent report (New Zealand Herald, 2009). In its subsequent annual report the Office of the Ombudsmen noted that it had taken the ‘unreasonably long period’ of 13 months for the patient to be moved to a more suitable facility (Ombudsmen, 2010).


ECT is a controversial treatment where an electric shock to the brain is used to induce a seizure. Today it is usually used to treat severe depression, most frequently in women, particularly older women. Unlike other forms of compulsory treatment, compulsory ECT requires a second opinion from a psychiatrist appointed by the Mental Health Review Tribunal. There is no information on the outcomes of these second opinions. The total number of patients with ECT dropped from 356 in 2009 to 235 in 2010. The average percentage of people given ECT without their consent was 20%.

Comparisons between DHBs
There is a large unexplained variation in rates of compulsory ECT between DHBs. For instance, in 2010 the percentage of compulsory ECT in relation to non-compulsory ECT varied from 35% to 3%, both in DHBs where there is a higher than average use of ECT.


People under compulsory orders have two major avenues to legally challenge their compulsory status.

Section 16 Reviews
During the assessment period, patients are entitled to have their status reviewed by the Family Court. The percentage of people released under Section 16 ranged from 12.5% and 8.4% between 2005 and 2009.

Mental Health Review Tribunal
The Mental Health Review Tribunal was established under the 1992 Act to consider people’s requests for review of their compulsory status and to release them if they no longer fit the criteria in the Act. The percentage of people who applied to the Review Tribunal for review who were released from their orders ranges from 7.4% in 2009 to 1.3% in 2010. These low percentages are concerning, particularly the 2010 percentage which is the lowest for the six year period of the Director’s Reports.


Lawton-Smith, S. (2006). A Question of Numbers: The potential impact of community-based treatment orders in England and Wales. London: King’s Fund.

New Zealand Herald. (2009, November 5). Hospital Restrains Man for Six Years. The New Zealand Herald. Retrieved from New Zealand Herald Database.
Office of the Director of Mental Health Annual Reports 2005 to 2010. Available from the Ministry of Health website.

Ombudsmen. (2009). Part 2 Report on Operations. Retrieved from http://www.ombudsmen.parliament.nz/imagelibrary/100312.pdf
Ombudsmen. (2010). Report of the Ombudsmen for the year ended 30 June 2010. Retrieved from
United Nations Human Rights Council. (2009). Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary-General: Thematic Study by the Office of the United Nations High Commissioner for Human Rights on Enhancing Awareness and Understanding of the Convention on the Rights of Persons with Disabilities. Retrieved from United Nations Archives. New York: North America.

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