Why we are repealing and replacing the Mental Health Act
He Ara Oranga, the report of the independent Inquiry into Mental Health and Addiction, recognised that the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Mental Health Act) has not kept pace with the shift towards a recovery and wellbeing approach to care, and has never been comprehensively reviewed. The report made the following recommendation:
‘Repeal and replace the Mental Health (Compulsory Assessment and Treatment) Act 1992 so that it reflects a human rights-based approach, promotes supported decision-making, aligns with the recovery and wellbeing model of mental health, and provides measures to minimise compulsory or coercive treatment.’
How this will be achieved
Government accepted the recommendation to repeal and replace the Mental Health Act.
Since 2019, we have been working on immediate, short-term improvements under the current legislation, alongside work to understand what issues need to be addressed in creating new mental health legislation for New Zealand. These activities are reflected in the three work streams below.
Improving service user experiences under the current Mental Health Act
- Published new Guidelines in September 2020
- Education and training underway
- Published the following guidelines in October 2022:
- Guidelines to the Mental Health (Compulsory Assessment and Treatment) Act 1992
- Guidelines for the Role and Function of Statutory Officers: Appointed under the Mental Health (Compulsory Assessment and Treatment) Act 1992
- Special Patients and Restricted Patients: Guidelines for Regional Forensic Mental Health Services
Initial amendments to the current Mental Health Act to better protect people’s rights and improve safety
- Bill introduced March 2021, currently being considered by the Health Committee
- Public submissions closed 19 May 2021
- Health Committee reported back to the House on 14 September 2021
- the Mental Health (Compulsory Assessment and Treatment) Amendment Act 2021 passed into law in October 2021.
The full repeal and replacement of the Mental Health Act
- Principles to guide development of new legislation approved by Government in 2019
- Review of previous related consultations, academic research, and international examples to understand key issues and potential options for new legislation
- Public consultation in late 2021 and early 2022 to inform new legislation.
Public consultation closed on 28 January
We are transforming Aotearoa New Zealand’s approach to mental health and addiction, so that people can get the support they need, when, where, and how they need it. Ensuring we have fit-for-purpose legislation is one part of this transformation.
New mental health legislation can support pae ora (healthy futures) by supporting tino rangatiratanga (self-determination), enhancing mana, protecting rights, encouraging whānau involvement, strengthening the recognition of Te Tiriti obligations, and promoting Māori cultural needs and values.
Most people in Aotearoa New Zealand who access specialist mental health and addiction services will not be placed under the current Mental Health Act - in 2019, less than six percent of people using specialist mental health and addiction services were placed under the Act.
Although the current Mental Health Act is only used for a small proportion of people each year, it has a big impact on the lives of those who do experience it, and their family and whānau.
We have heard why change is needed, and the next step is to get clear direction for what mental health legislation in New Zealand should look like.
Public consultation opened on 22 October 2021 and closed on 28 January 2022. The Ministry of Health engaged widely to ensure feedback was representative of key groups, including people with lived experience and their family and whānau, Māori, Pacific, Asian and ethnic communities, the mental health sector including non-government organisations, clinicians, as well as the general public.
All submissions received have been reviewed by an external independent research company and they have provided the Ministry of Health with an analysis document of the public consultation findings. While individual submissions have not been made public to protect the privacy of individuals, the full submissions analysis document is available. The findings of the submissions analysis will guide the policy development of policy proposals for new legislation.
What was included in the consultation?
The discussion document has been divided into nine parts. Parts One and Two give background information about the current Mental Health Act, reasons for repealing and replacing it, and how new legislation fits into mental health and addiction services.
Parts Three to Nine each focus on specific topics for discussion. The topics covered are:
- Part 3 - embedding Te Tiriti and addressing Māori cultural needs
- Part 4 - defining the purpose of mental health legislation, including considering a human rights approach and whether compulsory mental health treatment should ever be allowed
- Part 5 - defining why, when and how compulsory mental health treatment, if permitted, might be appropriate
- Part 6 - making sure people are able to use appropriate tools to support them to make decisions about their care and treatment
- Part 7 - considering the use, or prohibition, of seclusion, restraint, or other restrictive practices
- Part 8 - addressing the needs of specific populations: people from different cultures, family and whānau, children and youth, disabled people, and people from the justice system
- Part 9 - ensuring people’s rights are protected and monitored.
Public consultation findings
An external independent research company was contracted by the Ministry to analyse all the feedback and submissions received through public consultation. The submissions analysis document contains the analysis of the feedback gathered across two public consultation channels – written submissions where we received 317 submissions and from consultation hui where feedback was gathered from over 500 people across 60 online information sessions.
The submissions analysis shows that there is a strong desire for the Mental Health Act to be more tāngata whaiora and whānau focused, that Te Tiriti o Waitangi should be the foundation for new mental health legislation, that rights should be upheld in alignment to international conventions and that the current Mental Health Act is being misused. The findings are explored in more detail here.
Many submissions and comments reiterated why the repeal and replacement of the Mental Health Act is important, covering wider system and operational issues. While these insights go beyond the scope of legislative reform, they will inform ongoing work to transform the Mental Health and Addiction system more broadly.
Expert Advisory Group
After asking, through public consultation, what new mental health legislation should look like in Aotearoa New Zealand, the Ministry of Health established a group of experts to assist with the next stage of work to repeal and replace the Mental Health Act. A key role will be to assist the Ministry to balance the diverse views received through public consultation.
The Ministry put out a call for expressions of interest from the public to become members of an Expert Advisory Group (EAG). We were looking for individuals from a range of backgrounds and perspectives, including Māori and tāngata whaiora, people with personal or whānau lived experience of the Mental Health Act, service providers, as well as legal and academic expertise.
There were high levels of interest in this mahi, with over 130 applications received. This reflects how important this kaupapa is to many across Aotearoa New Zealand.
We are pleased to announce the appointment of the following people to the EAG:
- Co-Chairs: Anthony O'Brien and Kerri Butler
- Frank Bristol
- Gemma Griffin
- Karaitiana Tickell
- Kiri Prentice
- Mark Fisher
- Patsy-Jane Tarrant
- Raeleen Toia
- Tereo Siataga-Kimiia
- Tui Taurua
- Wheeti Maipi
The Ministry will work closely with the EAG in the next stage of our work. We will use the feedback and discussions from the EAG to inform the policy development and advice to the Government for new legislation that best reflects the needs of the people who will be cared for under it.
The next steps are for Hon Andrew Little, the Minister of Health, to report back to Cabinet with policy proposals for new legislation. Once the Government has agreed to the policy for new legislation, a Bill will be drafted and go through the Parliamentary processes.
The next steps are for the Minister of Health to report back to Cabinet with policy proposals for new legislation. Once the Government has agreed to the policy for new legislation, a Bill will be created and will go through the Parliamentary processes.
This process includes select committee consideration where people will have the opportunity to comment on the Bill before it becomes law. For more information on all of the steps involved, please see the webpage How a Bill becomes law.
If you have any questions or would like more information, please email [email protected].