Last week’s lecture ‘Exit or No Exit – An Analysis of NZ’s Mental Health Review Tribunal Decisions ’ presented by Kate Diesfled at AUT’s Akoranga Campus provided a fascinating insight into the workings of our Mental Health Review Tribunal.
Public access to the decisions of the Tribunal in New Zealand is highly restricted, the study authors having been granted special permission in what is a commendable, though still incomplete, move towards greater transparency. Why is access so important? While there are conditions which influence the decisions of the Tribunal which are explicit and detailed in the Mental Health Act, other implicit factors which influence the likelihood of release from compulsory status are not. Furthermore even the explicit conditions may be interpreted or applied in different ways.
Kate’s article ‘Mental Health Review Tribunals: Implicit Factors for discharge’ delves into twenty years of reviews to help increase understanding of the Tribunals decisions and to help bring consistency and fairness to the process.
The percentage of reviews which are successful is very low currently with only 4% of applications resulting in release from compulsory status. This has been taken in some circles as a sign that the system is working and that only those that need to be under an order actually are. However there is there is evidence emerging both here and overseas to suggest otherwise.
In one exceptional case in New Zealand a clinician reported that for one of their patients who had been under an order for a very long time that there had been no practical utility for the Act in the last five years, maybe not even in the last ten years.
Another concerning statistic is the number of applications which are withdrawn before they are heard, with 44.8% of applicants not proceeding with their review between 2011- 2012. Anecdotal evidence suggests that the very small chance of a successful application is discouraging people from following through, with some applicants being advised to not even bother.
An often cited term, present in the majority of the the decisions of the Tribunal is the notion of insight. However there is ambiguity as to what this term actually refers to, which creates a risk that it may be being used in an arbitrary way to describe any challenge by the applicant to the decisions of clinicians. The Tribunal ruled that a reluctance to talk about previous bouts of illness cannot be described as a lack of insight, saying that applicants should not have to revisit traumatic experiences at a hearing to prove that they are fit for discharge.
The notion of imminence is also highly relevant. The study found that when the imminence of a relapse was considered as a factor in the hearing the likelihood of discharge increased, however the test of imminence is applied intermittently which has the effect of creating variations across hearings and therefore disparate treatment of applicants.
The Tribunal has also ruled that Community Treatment Orders cannot be used for protection or as a safety net on hypothetical grounds as to what might happen in the future if a person was to deteriorate. Despite this ruling this criteria has often been stated in subsequent decisions showing that the Tribunal is sometimes not even reading its own decisions.
So what can an applicant do to help prepare for a successful hearing?
The presence of family members is important as an indication that there is ready access to their support. Preparing a written statement can be helpful with one Tribunal indicating that it was positively influenced by the applicants’ submission. Some discretion with respect to content is advised however as any commitments made within such as agreeing to take medication can impact on any subsequent hearings if the agreement is breached. Depending on the situation a statement can have both pros and cons.
Past conduct is also taken into account, with the Tribunal taking into account the applicants track record: Did the person manage well in the community without compulsion? How long had they remained well for and to what extent were they symptom free? Compliance with medication was also a factor.
A highly advisable strategy is to find a lawyer both experienced in this particular field of law and who is prepared to put your desire for release before any other considerations. Despite that fact that it is the role of the Tribunal to consider factors for release and the role of your lawyer to represent you there have been instances where the Tribunal has identified some cases of inadequate legal representation which failed to prioritise the wishes of applicant. This reflects a need for more education and specialisation for lawyers in this field.
The study provides an opportunity for reform: free access to anonymised decisions will facilitate better legal representation for applicants and enable the application of precedent in Tribunal proceedings. The goal is to illuminate the factors which have persuaded the Tribunal to discharge for the benefit of service users. Kate’s article and the book “New Zealand’s Mental Health Act in practice” when published will be a valuable resource and a welcome addition to research on this topic. For details on the publication see the abstract below:
Mental Health Review Tribunals: Implicit Factors for discharge
Mental health review bodies have the profound power to restore liberty to people who are subject to compulsion. They are powerful because they provide an independent safeguard against unjustified detention and treatment. Mental Health Review Tribunals address diverse legal and ethical issues while balancing social, clinical and cultural factors that are specific to each person who applies for a review.
This chapter analyses the 80 cases of discharge decided across the nation by the New Zealand Mental Health Review Tribunal (the Tribunal) from 1994 through 2012. The analysis contributes to an international interest in how review bodies function. The research examines factors that are not defined in the relevant legislation but recur in discharge decisions.
The Tribunal is required to certify whether or not the Applicant is fit to be released from compulsory status. The Mental Health (Compulsory Assessment and Treatment) Act 1992 provides express criteria governing entry into and exist from compulsion under the Act. These are referred to in the chapter as “explicit factors” because they are explicitly stated in the Act.
This chapter, in contrast, focuses on “implicit factors” governing compulsory status. The 80 decisions have been analysed to identify more particular factors that seem to influence the Tribunal’s discharge decisions and to identify statements by the Tribunal regarding how it will interpret or apply the explicit factors. Information derived from the analysis may help promote procedural fairness for applicants at future hearings and may assist all participants to prepare for hearings. More broadly, illumination of the recurring factors may contribute to consistent decision-making, future legislative reform and international understandings of how Tribunals make decisions.
Diesfeld, K. (in press) Mental Health Review Tribunals: Implicit Factors for discharge.
Dawson, J. and Gledhill, K. (Eds.) (in press) New Zealand’s Mental Health Act in practice. Wellington: Victoria University Press. (available from the publishers in late October or November of this year.)
Five mental health law conferences will be delivered by New Zealand researchers (and the contributors to the above book) in November 2013. By registering for one of the events through the New Zealand branch of Australia New Zealand Psychiatry, Psychology and Law, registrants also receive a copy of the book in the price. The ANZAPPL website has the details.
Diesfeld, K. Insight: Unpacking the Concept in Mental Health Law. Published in Psychology, Psychiatry and the Law Vol 10, No 1, p 63-70.