Transcript Document

Human Rights, Constitutionalism and
Mental Health Law in New Zealand
John Dawson
Professor, Faculty of Law,
University of Otago
Dunedin, New Zealand
IALMH Conference,
Padua, June 2007
Factors influencing the rate of use of CTOs
• Additional authority conferred to treat
outpatients
• Adequacy of community services available
• Administrative burden imposed on clinicians
• Perceived harm caused to therapeutic relations
• Exposure to liability for conduct of the patient
in the community
Human Rights in New Zealand
•
•
•
•
•
•
•
•
No entrenched ‘written constitution’
A party to international HR treaties: eg, ICCPR
Not a party to the ECHR
NZ Bill of Rights Act 1990: an ordinary statute
Anti-discrimination legislation
A statutory code of patients’ rights
Independent judiciary and legal profession
Ready access to courts and tribunals
In New Zealand
Human rights principles strongly influence:
• the design of legislation
• development of the common law
• interpretation of open-textured legal terms
• the exercise of administrative discretion
BUT : no bill of rights as ‘supreme law’
: no judicial review of legislation
New Zealanders’ attitudes to the
constitutionally entrenched human rights:
why so sceptical ?
•
•
•
•
•
A majoritarian, egalitarian political culture
A generally positive view of the state
Distrust of greater judicial power
Prefer codified rules to open-textured principles
Do not accepted that judicial review of
legislation is necessarily required (or effective)
to protect human rights.
>>> a preference for ‘the dignity of legislation’.
New Zealand Bill of Rights Act 1990
• Affirms rights protected by the ICCPR
• Incorporates these rights into NZ law
• An ordinary statute of the NZ Parliament
• Not ‘supreme law’
• Does not prevail over other legislation
• A guide to interpretation and use of discretion
• Preserves parliamentary supremacy
• All the courts’ usual remedies are available,
except judicial review of legislation.
The ‘dignity of legislation’
• Parliament takes responsibility for human rights
• A more pluralistic law-making forum
• More accessible to interest groups
• A wider set of information and argument
• Promotes flexibility and compromise
• Avoids hard cases making bad law
Unentrenched human rights still influence
NZ mental health law
Waitemata Health v Attorney-General
[2001] NZFLR 1122 (NZCA)
concerning the legal standard governing the
discharge of compulsory patients under
NZ's Mental Health Act.
A compulsory patient shall be released when:
'no longer mentally disordered and fit to be released’.
The NZ Court of Appeal's
decision on the meaning of the discharge standard
[N]o standard against which an additional
judgment of "fitness" is to be made is contained in
the Act. Such wide power to detain for reasons of
public interest is inconsistent with the careful
scheme of the Act and its respect for the human
rights of those subject to its provisions. In
application it would raise the risk of potential
conflicts with the provisions of the New Zealand
Bill of Rights Act, particularly the right recognised
by s 22 not to be arbitrarily detained.
Major Variations in Rate of Use of CTOs
People under CTOs per 100,000 population
Victoria, Australia (2005)
District of Columbia (2004)
New Zealand (2003)
Queensland (2004)
Maricopa County, Arizona (2004)
Western Australia (2004)
Tennessee (2004)
Ontario (2003)
S Lawton-Smith, A Question of Numbers,
King’s Fund, London (2005)
60
54
44
43
31
10
10
2
Community Treatment Powers
under NZ’s Mental Health Act
•
•
•
•
•
•
•
•
a duty placed on the patient to accept treatment
patient to accept visits and attend appointments
power to direct the ‘level’ of accommodation
CMH team may enter private premises at
reasonable times, for treatment purposes
swift recall to hospital by responsible clinician
police assistance in that process
treatment without consent in a hospital or
properly staffed clinic
no ‘forced medication’ in community settings.
Mental Health (CA&T) Act (NZ) 1992,
Section 29(1)
The CTO:
‘shall require the patient to attend at the
patient's place of residence, or at some other
place specified in the order, for treatment by
employees of the specified . . . service, and to
accept that treatment.’
>>> as directed by their Responsible Clinician.
The power of entry
conferred by a CTO in NZ
Section 29(2) MH(CA&T) Act 1992 (NZ)
‘Every employee of the service … who is duly
authorised to treat the patient may, at all
reasonable times, enter the patient’s place of
residence or other place so specified for the
purpose of treating the patient’.
Victorian CTO Guidelines (2001)
“It is not acceptable to use physical force to impose
treatment in any community setting.
“Similarly, it is not acceptable to use the presence
of others (especially Police) to coerce a person to
take treatment in the community.
“If such a degree of force or coercion is considered
necessary … the [order] should be revoked,
whereafter the person must be admitted to an
inpatient unit.
“This allows … reconsideration of their clinical
state, treatment needs, and treatment regime”.
Community Treatment Powers
in New South Wales
Mental Health Act 1990 (NSW), section 146
Clinicians may ‘enter the land, but not the
dwelling’ of the patient, to facilitate treatment.
Medication may be administered in community
settings without consent:
‘if it is administered without the use of more
force than would be required … if the person
had consented’.
Mandatory information-sharing with involuntary
patients’ families under NZ’s MH legislation
Clinicians must consult & inform the patient’s family:
• during compulsory assessment and treatment
• when compulsory status is extended or reviewed
unless, after consulting the patient, this is not considered
in the patient’s ‘best interests’.
Clinicians may inform family of impending discharge;
and must do so when the family has been victimised.
The family have a right to appear at formal hearings.
These provisions trump the patient’s usual privacy rights.
European Convention on Human
Rights, Article 8(1)
‘Everyone has the right to respect for
his private and family life, his home
and his correspondence’.
Canadian Charter of Rights and
Freedoms, Section 7
‘Everyone has the right to life, liberty
and security of the person and the right
not to be deprived thereof except in
accordance with the principles of
fundamental justice’.
‘Justified Limitations’ on Rights
Canadian Charter of Rights and Freedoms
Section 1
‘[This Charter] guarantees the rights and
freedoms set out in it subject only to such
reasonable limits prescribed by law as
can be demonstrably justified in a free
and democratic society’.
Discussion
• The final content of the law in NZ and Australia is
determined by Parliament
• Human rights principles are very influential
• Compromises are reached between interests
• Enforceable CTO regimes have been enacted
• Clinicians, families have confidence in them
• CTOs are the preferred form of ‘leverage’
• Other forms of ‘leverage’ are less used:
eg, mental health courts, adult guardianship
• This model may not suit constitutionalised systems.