THE PRESS SATURDAY, DECEMBER 26, 1987. The Mental Health Bill

Press, 26 December 1987, Page 16

THE PRESS SATURDAY, DECEMBER 26, 1987. The Mental Health Bill

The introductory note to the Mental Health Bill to be considered by Parliament defines its central dilemma thus: “Perhaps more than any other area of law, mental health law is bedevilled with questions that are probably unanswerable. The underlying question can be simply stated: in what circumstances should a civilised society insist on treating a mentally disordered citizen who is incapable of giving consent or, worse still, is capable of giving consent but refuses to do so?” The bill makes a brave attempt to answer the “unanswerable” question, putting emphasis generally on the ways in which a need for the treatment of a mentally disordered person can be established. Here, it changes the emphasis of the present law, the Mental Health Act, 1969. In the present law the first consideration was the detention of people deemed to be unable to care suitably for themselves, or deemed to be a danger to others.

These two approaches to the law’s response to mental ill health, and the detention of people suffering its more extreme or violent forms, go to the core of society’s dilemma. The present law, while it is careful of the well-being of patients and prospective patients, attaches much importance to the protection of other members of society. The new bill expresses more concern for the rights of individual patients. In the crudest terms, if the law is changed in accordance with the new bill, it is going to be harder to get locked away because of mental disabilities, and harder to get someone else locked up. The emphasis will be on treatment and, for preference, treatment outside an institution. The new bill would create an elaborate system of assessment, more set about with checks than the present arrangements, before a compulsory treatment order could be made. No system is likely to earn universal approval. A balance has to be struck between the weight to be accorded the opinions of the judiciary and the weight accorded medical evidence. Neither is infallible. Both must balance the well-being of individuals against the well-being of society and of those who are in close contact with mentally ill or disturbed people.

Even defining mental health poses problems. The present law defines people who are mentally disordered as people who are mentally ill, mentally infirm, or mentally subnormal. The new provision tries harder. Mental disorder (in a person aged 17 or over) is defined as “an abnormal state of mind, characterised by delusions, or by disorders of mood or perception or volition or cognition, of such degree that it, (a) poses a serious danger to the health or safety of that person or of others; or (b) seriously diminishes the capacity of that person to take care of himself or herself.” That is not a definition

that everyone is likely to agree with, or even understand, though anyone would be hard put to it to contrive a simple, fair, and workable definition.

Special difficulties attach to the assessment of people who may be mentally ill, who may need treatment in spite of their own view of themselves, or who may pose the risk of violent behaviour towards others. Such conditions are not always immediately apparent to those required to make an assessment; people who are mentally ill may not be well placed to speak for themselves; there always remains a danger, although surely, a very small one in New Zealand, that someone will be “accused” of being mentally ill for reasons of personal or political or religious persecution.

The new law attempts to provide special safeguards against such an accusation. It lays down, for instance, that procedures for compulsory assessment and treatment shall not be invoked solely because of a person’s “political, religious, or cultural beliefs.” Few would want to quarrel with such a provision, although it slides past the awkwardness posed by extreme beliefs that are held with extreme fervour and may be exhibited in a threatening or violent way. Perhaps the answer, if one is needed, to this lies in much more everyday law that protects citizens from threats, violence, or persistent nuisance. Likewise, the bill sets out carefully the rights of compulsory patients to information, to access to legal and psychiatric advice, and to access to the various systems of complaint and appeal. That, too, seems eminently fair, but problems of interpretation may arise. For instance, the bill provides that “every patient is entitled to respect for his or her cultural and ethnic identity, language, and religious or ethical beliefs.” Taken to its limits, the provision could require that the man who believes himself to be Napoleon would have to be addressed in French and treated with the forms and respect due to an Emperor of. France.

An extreme case hardly brings a whole intention into question. Undoubtedly, the bill attempts to improve the lot of people suffering from mental disorders, and to ensure that their treatment is high among the duties of the State’s institutions. New Zealanders are not always as compassionate as they might be towards people suffering from mental disorders. If the law errs in favour of such unfortunate sufferers, that may be no bad thing. But the Government may have to be ready to amend its provisions if it turns out that enthusiasm to keep mentally disturbed people out of institutions brings further harm to the community from criminal behaviour. The costs of the alternatives to institutional care will have to be faced as they have not been faced in the past if this new approach to illness is enacted.