Mental Health Act 

What is the Mental Health (Compulsory Assessment and Treatment) Act?

Normally when a person experiences mental illness they get to make their own decisions about their treatment. The Mental Health (Compulsory Assessment and Treatment) Act (which we'll refer to here as the Mental Health Act) covers any situation where a person needs treatment for a mental illness even if they don't agree to it. If someone becomes a patient under this Act then their right to refuse treatment can be overridden and they may have to stay in hospital. 


What is a mental disorder?

The Mental Health Act defines mental disorder as an abnormal state of mind where the person may be of serious danger to their own, or others’ health and safety. If you need more information you can find out more on the Community Law website or you can talk to your doctor or a mental health support group about any concerns you may have.   

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How can I have someone assessed as having a mental disorder?

If you are concerned about the mental health of someone you know, you can first try talking to them about it. Your support can help your friend or family member to seek help from their doctor, a mental health support group or a mental health provider. More information about how to help someone with a mental health problem is on the Mental Health Commission’s guide, When someone you care about has mental health or addiction problems.

If the person is unwilling to get help and you believe they are at serious risk of hurting themselves or others, you might consider applying to have their mental health assessed even without their consent. You can do this if you are over 18 years of age, you have seen the person in the last three days and you believe they might have a mental disorder.

Your application must be made in writing and sent to the Director of Area Mental Health Services(DAMHS), you can find out more about how to make an application on the Community Law website.

For more help with an application you can contact your doctor. Your doctor can also help you find the name and contact details of your local DAMHS (or you can visit the website of your DHB ).

If you think it is an emergency, and the person or someone else is at risk of harm, you can call 111 or phone your local mental health crisis team.

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How is someone assessed as having a mental disorder?

There are up to three assessment stages:

1. Preliminary assessment - this is carried out by a clinician, usually a psychiatrist, and occurs after someone has applied to the Director of Area Mental Health Services (DAMHS), through a GP, to have you assessed. You will get all the information about your assessment, e.g. the time and place, the name of the doctor and what the appointment is for. You don’t have the right to refuse assessment, and the Police may get involved if necessary to ensure you turn up.

2. If the preliminary assessment finds there are reasonable grounds for believing you have a mental disorder then there will be further assessment and treatment for up to five days.

3. Before the end of the five day period the clinician must decide whether you have a mental disorder and require further assessment or treatment. If they do you can be held for further assessment and treatment for up to 14 days - by the end of this period the clinician decides whether you are well enough to be released (in which case no further treatment or assessment is given). If not, they must apply for a compulsory treatment order.

At any stage during the assessment stage, you have the right to ask that a judge reviews the doctor’s decision. If you are unable to apply for a review yourself, one of the following people can do so on your behalf:

  • the person who applied for the assessment of you
  • your principle caregiver (if there is one)
  • your GP
  • your welfare guardian, if there is one
  • a District Inspector.

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What are my rights if I am assessed as having a mental disorder?

The Mental Health Act sets out eleven basic patient rights. You have the right to: 

  • information (e.g. about your legal status, your treatment and likely side effects)
  • respect for cultural identity (e.g. your cultural and ethnic identity, religious or ethical beliefs)
  • an interpreter (even if you can speak and understand English but prefer to communicate in another language)
  • treatment which is appropriate and of a professional standard
  • be informed about treatment (e.g. what it is for and what the side effects might be)
  • refuse video recording
  • independent psychiatric advice (e.g. if you are concerned about the treatment you are receiving)
  • legal advice (if you can’t afford a lawyer you may be eligible for legal aid)
  • company (you can’t be put into isolation unless it’s necessary for treatment or safety)
  • have visitors and make telephone calls (but you may lose this right if your clinician believes these would not be in your interest)
  • send and receive mail (hospital staff can’t open your mail - you may lose this right if your clinician thinks it would not be in your interests, but there are some types of mail which staff can never be opened or withheld e.g. from your lawyer)

You’ll also have rights under the New Zealand Bill of Rights Act 1990 and the Code of Health and Disability Services Consumers’ Rights.

You must be given a statement of your rights when you become a patient.

You can read more about your rights as a mental health patient on the Community Law website.

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How do I make a complaint about a breach of my patient rights under the Mental Health Act?

If you feel your patient rights have been breached you can make a complaint to the District Inspector in your area. If this doesn’t resolve your complaint, you can go to the Mental Health Review Tribunal or the Health and Disability Commissioner.
 
District Inspectors are lawyers who are responsible for protecting the rights of people under the Mental Health Act. They will investigate your complaint and report to the Director of Area Mental Health Services (DAMHS), including any recommendations they have to resolve the issue.

Your District Inspector is also one of the people who can apply to the Mental Health Review Tribunal (Review Tribunal). The Review Tribunal can review a decision to continue a patient’s treatment order (these decisions are made by the clinician regularly once the compulsory treatment order begins), or investigate a complaint about a breach of patient rights. The Review Tribunal they can also: 

  • give you information about your legal rights, 
  • arrange for a lawyer to represent you,
  • look into other aspects of patient care or treatment and
  • inspect hospitals and other services (e.g. checking their records about the use of seclusion, restraint and force)

Your mental health provider can give you the contact details of your District Inspector.

More information about making a complaint is in the Human Rights Commission’s guide.

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What is a compulsory treatment order?

A compulsory treatment order is a court order which states that a person has a mental disorder and must undergo treatment for up to six months (either in a hospital or in the community). A clinician can apply for this if, during their assessment, they decide that their proposed patient (someone whose mental health is being assessed) is not fit to be released and therefore requires further treatment.

The proposed patient will receive a copy of the documents relating to the application, as well as further assessment and treatment either in a hospital or in the community.

If a compulsory treatment order is made, then the first month of treatment is compulsory. Any treatment which is offered to the patient after this first month can only proceed if: 

  • they have given informed consent or
  • an independent psychiatrist (not the responsible clinician) determines that the treatment is necessary or
  • the treatment is for an emergency and there isn’t time to get the patient’s consent

A compulsory treatment order can be extended for two more six-month periods; a third extension lasts indefinitely.

More information about compulsory treatment orders is on the Community Law website.

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How do I challenge a compulsory treatment order against me?

You can apply for a review of the clinician’s assessment at any time during their assessment of your mental health.

If the clinician has applied to the Court for a compulsory treatment order to be made, you have the right to go to the hearing and be heard by the Court (in some cases you may not be allowed to appear e.g. if the judge decides it’s not in your best interests to appear at the hearing). You can choose to represent yourself or be represented by a lawyer. The local District Inspector can help you find a lawyer, or - if you can’t afford a lawyer - you may be eligible for a legal aid lawyer).

Once a compulsory treatment order has been made whether and how you can challenge the order depends on the situation:
  • if the clinician reviews your compulsory treatment order (which they must do periodically) and decides you are still not fit to be released you can apply to the Review Tribunal. 
  • if you are in hospital under an inpatient order (a compulsory treatment order which requires you to get treatment in a hospital), you (or someone on your behalf) can apply to the High Court for a judicial inquiry to look at the legality of your detention

More information is on the Community Law webpages about compulsory treatment orders and mental health rights

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What can I do about my son who has been discharged from a psychiatric hospital?

You can speak to your son's health provider about the reasons for their decision and find out what, if any, support they have arranged for him. See the Mental Health Commission’s guide, When someone you care about has mental health or addiction problems and the factsheets on the Supporting Families in Mental Illness website for more information about supporting a family member with mental illness. 

In the meantime your son will need somewhere to stay. If he isn’t able to stay with you, you may need to find him suitable accommodation. A number of community groups run supported living arrangements for people who can’t yet manage living on their own (e.g. see a list of Auckland accommodation providers on the Supporting Families in Mental Illness website). Your local Citizens Advice Bureau can help you get in touch with these housing providers.  

Your son may also require ongoing treatment after his discharge; you can discuss this with his mental health provider.