DIRECTOR OF MENTAL
HEALTH REPORTS 2005-2010
SUMMARY OF TRENDS IN
COMPUSORY INTERVENTIONS
Mental Health
Foundation of New Zealand December 2011
INTRODUCTION
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).
COMPULSORY TREATMENT ORDERS
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
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).
COMPULSORY ELECTRO-CONVULSIVE
THERAPY (ECT)
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.
REVIEW OF COMPULSORY STATUS
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.
REFERENCES
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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