High Court Case - the context we’re surrounded by

Following the High Court hearing of the The Gordon and Newton-Howes v the Attorney-General of New Zealand and the Director-General of Health case on 13 and 14 February, we are sharing a series of short stories covering some of the topics that this case touches on.

The Context We’re Surrounded By

Many of us in the Lived Experience community understand the Mental Health Act (1992) in Aotearoa, either from a personal experience, knowing that it is something people might experience, or from supporting friends, whānau or loved ones who have been placed under the Act.

The Gordon and Newton-Howes v the Attorney-General of New Zealand and the Director-General of Health asked the court to make declarations that, if the Judge exercises their power to make them, will interpret the current Mental Health Act in a way than enhances human rights. The Judge has reserved their decision while they process all the information presented to the Court. This means we don’t know the outcome yet, and it might be a few weeks or months before we find out.

We wanted to highlight some of context, the other laws, policies and guiding documents that surround this case.

The current Mental Health Act, and the process to repeal and replace.

The public processes to consult on the repeal and replace the Mental Health Act started in 2021, and many people contributed to Changing Minds’ submission or shared their thoughts in other ways on this mahi. However, at the time of the case, a new Bill hasn’t been released (Bills are proposed legislation or changes to legislation, that when they receive ‘royal assent’ become Acts and are Law).

This is important for two reasons. First, In Aotearoa our Courts (called the Judiciary) and Parliament (called the Legislature) and Government (called the Executive) are separate and have different functions. Because of this, the Courts cannot interfere with the decisions of parliament to pass a law. You can find out more about this here, and here.
Secondly, before the Mental Health Act became law in 1992, it had a long journey through the parliamentary process – years in fact.

Sarah and Giles, who are the incredible people behind case fully support the process to repeal and replace and are instead looking to improve the current Mental Health Act while this transformation is underway.

Because of these reasons, it’s important that everyone is clear that this case is talking about how we can align approaches to the current Mental Health Act with a human rights approach while this next stage of transformation happens as the current Act will continue to impact people’s lives during this time.

The Law Commission Review of Adult Decision-Making Capacity

The first declaration the case is seeking is that if a person has the decision-making skills/mental capacity to make decisions about their mental health then their decisions should be respected and not overruled by using the Mental Health Act.

The timeliness of the Law Commission’s review of adult decision-making capacity underscores why it’s important that we’re talking about this case now, and as we look to the transformation of the Mental Health Act. This review has just received public feedback on it’s first stage of consultation (closed on 3 March 2023), and a second stage of consultation is expected later this year.

This review acknowledges that people’s attitudes towards disability (and mental health) have shifted, and many are now moving towards a social model of health. It reflects the need for our laws to account for and uphold Te Tiriti o Waitangi and te ao Māori, and reflects that how current laws treat people as having – or not having – decision making capacity doesn’t reflect real life. The review also follows recent strengthening and protection of human rights which weren’t solidified when many of our current laws were written.

Other laws, policies and context

The diagram below outlines some of the many additional laws, policies, guidelines and changes that surround people with Lived Experience of mental distress and/or addiction. The Gordon and Newton-Howes case touched on many of these.