Thursday, January 26, 2006

Community Treatment Orders in New Zealand (a CTO)

The Mental Health (CAT) Act 1992 confers jurisdiction on a District Court to make a community treatment order (CTO). A CTO should not be confused with an inpatient order. Section 29(1) of the MHA states;

A community treatment order shall require the patient to attend at the patient's place of residence, or at some other place specified in the order, for treatment by employees of the specified institution . .. , and to accept that treatment.

The treatment given under s.29(1) must be for "mental disorder" ( as defined in s.2 MHA & extensive caselaw). Apparently the word 'treatment',in section 29(1), should not be construed too narrowly and includes all remedies available to health professionals to manage mental illness (see CHH v R(1995) 13 FRNZ 294. Although '[e]very patient is entitled to medical treatment and other health care appropriate to his or her condition'.( s.66 MHA). Before making the order the Court must be satisfied that the patient will be provided with' care and treatment on an outpatient basis that is appropriate to the needs of the patient' and that 'the social circumstances of the patient are adequate for his or her care within the community' ( see s.28(4)(a)&;(b) MHA).

Under s.29(1) of the MHA the patient is "required to accept" treatment for "mental disorder" on the directions of the "responsible clinician" (defined in s.2 MHA) during the first month of the currency of the CTO. Treatment after this first month can only continue where a "psychiatrist" (defined in s.2 MHA) , not being the responsible clinician, considers ongoing treatment to be ' the interests of the patient...' ( s.59 (2)(b) MHA; an identical phrase also appears in s.60(b) MHA - ECT ). In every other case the patient's informed and written consent to treatment must be obtained (s.59(2)(a) MHA).

Under s.29(2) of the MHA employees of the service, that is the employees specfied in the District Court order (CTO), '...may, at all reasonable times enter the patient's place of residence or other place so specified for the purpose of treating the patient' (s.29(2) MHA). Note that entry here is limited to 'all reasonable times'. Thus the time of entry must be 'reasonable'. Section 29(2) itself confers no express power on employees to use force to enter a patient's residence or to force a patient to attend at any other place specified in the order. Although,'person[s]', presumably employees of the service, 'may' use reasonably necessary force at any time to treat a patient pursuant to section 122B(3) MHA. If force has been used under s.122B(3)of the MHA, that person, or those persons, may be held liable for the use of excessive force ( as authorised by s.62 Crimes Act 1961).

Under s.40(2) a Duly authorised officer (defined in s.2 MHA) may take 'all reasonable steps' to take a patient to the place where they are to be treated. Although, s.40(2) does not expressly authorise a DAO to use force to take a patient to a place they are required to attend for treatment. If a DAO attempts to do anything under s.40(2), above, the police may be called to assist under section 41(3) MHA, and may, pursuant to section 122B(1) use '...force as is reasonably necessary in the circumstances' to take the patient to the place where they are required to undergo treatment (see s.122B(2)(b) MHA). However, the police may only exercise this power in an emergency (s.122B(1) MHA).

The Bill of Rights applies to acts and probably omissions of DAOs' and the police if they exercise any '...power,or duty conferred or imposed on that person or body by or pursuant to law'( see s.3(b) NZBORA; 'powers' are conferred on DAOs'by s.93 MHA). As such, if a citizen is detained under the MHA the right to consult and instruct a lawyer without delay will have particular relevance here ( s.23(1)(b) NZBORA cf. s.70 MHA Right to legal advice & for breach of s.70 see s.75 MHA). Pursuant to section 113A of the MHA a Judge or Registrar 'may' issue a warrant if a patient who is subject to a CTO refuses to attend at any place for treatment (s.113A(1)(b)(i)&(ii) MHA and see the Guidelines at p. 57.

Of course many of the above statutory powers are inconsistent with section 11 of the New Zealand Bill of Rights Act 1990 ; everyone has the right to refuse to undergo medical treatment. Still, there is some judicial authority that states a person who is 'competent' to refuse medical treatment can have section 11 enforced in their favour : Re K [2003] NZFLR 318. The word 'Everyone' , in section 11 , includes only those who are 'competent' to refuse treatment : so held in Re S [1992] 1 NZLR 363. A patient may be mentally disordered within the statutory definition in section 2 of the MHA, yet nevertheless be 'competent' to refuse treatment, as defined at common law. However, for a patient to be both mentally disordered and competent must be rare indeed.

A patient who is subject to a CTO may be required to accept treatment in a particular community setting. However, in Department of Health v D (1999) 18 FRNZ 233; NZFLR 514, Judge Robinson found that there is no statutory authority for a responsible clinician to state where a patient should reside for treatment whilst subject to a CTO, that is, where the patient should live in the community. The Ministry of Health claims a CTO made by a Judge can specify that an aspect of the patient's treatment is to include supervision and monitoring in a particular residential facility.

The actual wording of the Court order and it's degree of specificity should be carefully scrutinized. The wording used by the Judge is absolutely crucial. How specific is the wording? What precisely does the order state? Where the Court makes a CTO it must give or send a copy of that order to the patient (s.28(5) MHA). If, under section 29(1) of the MHA, a Court can make an order specifying that a patient is to live in a particular residential facility, then this appears inconsistent with section 18 of the Bill of Rights Act, which states, very generally;

s.18 Freedom of movement (1) Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand...

How can the patient have freedom of movement and residence if they are directed by the Court order to live at a certain residence and accept treatment? There 'appears' to be no cases on point where section 18 has been argued in this respect, and see again section 4 of the Bill of Rights Act. Having freedom of residence would mean a Court would be unable to make an order specifying where the patient were to live. It is submitted that the words in section 29(1) which read '...or at some other place specified in the order...' should be expressly repealed, as should the commensurate words in section 29(2) MHA. This would bring s.29(1) of the MHA more into line with s.18 of the Bill of Rights Act.

An overview of sections 33 to 36 of the Mental Health (C.A.T.)Act 1992

A CTO must continue in force for six months '... commencing on the day on which it is made and must then expire' ( s.33 MHA).

Withn 14 days before the date on which that CTO is to expire the responsible clinician 'may' seek a review of the case under section 76 of the MHA (s.34(1) MHA). If, after that s.76 review , the responsible clinician is satisfied that the patient is not 'fit to be released from compulsory status' ( see s.2 definition MHA; this opinion must be personally formed by the clinician : LB v R [1994] NZFLR 60). the clinician 'may' apply to the District Court for the currency of the order to be extended for a further six months - to commence on the day after the date on which the original order would, ex hypothesi, have expired (s.34(2) MHA).

The District Court must treat the clinician's application for an extention of the order as if it were made under section 14(4) of the MHA. Sections 15 and 17 to 33 apply '... with any necessary modifications' (s.34(3) MHA).

If, on such an application, the District Court Judge extends the currency of the order for a further six months, the provisions of section 33 must apply, except that, if the Court further extends the order it must have effect indefinately, and the patient must remain subject to the order, unless and until he or she is released from compulsory status (s.34(4) MHA; see Re K [2003] NZFLR 318.).

If , during the currency of a CTO, the responsible clinician considers the patient is 'fit to be released from compulsory status' ( see s.2 MHA definition) that clinian must , there is no discretion, direct that the patient be released from compulsory status (s.35(1) MHA; compare section 22 of the Bill of Rights Act - the right not to be arbitrarily detained).

If, on the other hand, the clinician decides that the patient is not 'fit to be relaeased from compulsory status' (s.2), yet a 'district inspector' ( see s.2 MHA definition) or 'official visitor' ( see s.2 MHA) or a friend or relative disagrees, the inspector or official visitor must, or the friend or relative may refer the case to the Review Tribunal pursuant to section 79 of the MHA ( reviews of persons subject to community treatment orders; s.35(2) MHA see Re EC [1999] NZFLR 711 (D.C.) for discussion of MHA sections 15, 18, 29, 33, 34, 35, 76, 79, & s. 11 NZBORA ). For examples of successful applications to the Mental Health Review Tribunal see Re VAT[1998]NZFLR 710 & Re RM [1998]NZFLR 568.

If a Review Tribunal decides a patient is not 'fit to be released from compulsory status' there is a statutory right of appeal to the Dictrict Court ( see s.79, in particular, (10) to (15)). A judicial inquiry lies under section 84 of the MHA by a Judge of the High Court; Re Vincent [2001] 1 NZLR 590 ( failed s.84 MHA application based on illegal detainment; cf. s.23(1)(c)of the Bill of Rights Act( right to have validity of arrest or detention determined without delay by habeas corpus - and to be released if arrest or detention is unlawful;see also the tort of false imprisonment; Brookshore v Hopkins (1773)Lofft 240; Anderson v Burrows (1830) 4 C&P 210;Innes v Wong [1996] 3 NZLR 238;In NZ, public law compensation may be sought by the detainee under Baigent principles; Simpson v A-G [Baigent's case][1994] 3 NZLR 667; see further s. 22 Bill if Rights Act - right not to be arbitrarily detained).

Where a patient is directed to be released from compulsory status under section 35 MHA, the CTO must be deemed to expire in that behalf in the direction ( s.35(3) MHA).

A CTO also ceases to have effect in certain other cases ( see s.36 MHA). For an excellent discussion of rights and procedure of the MHA see Mc Bride,T New Zealand Civil Rights Handbook, 3rd Edn. 2001, especially Chp. 5.




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