Thursday, January 26, 2006

The use of force in New Zealand mental health services

The Mental Health (Compulsory Assessment and Treatment) Act 1992 confers an express power to use force. Section 122B(3) states ;

'A person treating a patient to whom section 58 or section 59 applies
may use such force as is reasonably necessary in the circumstances.'

Now compare the general right in section 11 of the New Zealand Bill of Rights Act 1990 which affirms ( in s.2);

11. Right to refuse treatment Everyone has the right to refuse to undergo any medical treatment.

The legislature has conferred upon the 'person[s]' in s.122B(3) a statutory discretion to use reasonably necessary force. Note, unlike subsection (2) of section 122B, here, the use of force is not confined to emergencies. Force may be used at any time for the purposes of treatment ( stated in Guidelines to the Mental Health (CAT) Act 1992 April 2000 at pp.57 & 58) - for 'mental disorder' ( as defined in s.2 MHA). That statutory discretion, found in s.122B(3), is contrary to the right in section 11 of the Bill of Rights, above. There is a definite inconsistency when s.122B(3) is viewed alongside section 11.

By dint of section 4 of the Bill of Rights s. 11 would most likely not operate. Section 4 expressly upholds inconsistent legislation such as s.122B(3) MHA. Whether the subsection does prevail over section 11 of the Bill of Rights Act is ultimately a question of statutory interpretation. In Re S [1992] 1 NZLR 363, Barker J, dealing with the Mental Health Act 1969 (repealed), observed; 'There is clear legislative intent as to when and by whom the rights and freedoms of the New Zealand Bill of Rights Act 1990, as regards the mentally disorded, may be restricted'( see p. 375 line 42). Surely that observation is just as relevant today in regards to the 1992 Act.

Although there is no clear legislative intent in the MHA in regards to the Bill of Rights Act, when the statutory text of section 122B(3)MHA is viewed alongside the right in section 11 of the Bill of Rights Act the inconsistency is immediately apparent. Of course the Bill of Rights Act is never expressly referred to anywhere in the MHA. Has Parliament overidden section 11 by necessary implication? Surely this is not so, as the MHA itself states; 'Except as expressly provided in this Act [the MHA] nothing in this Act shall limit or affect in any way the provisions of any other Act' ( s.136 MHA; emphasis added ). Obviously, s. 122B(3) MHA does not expressly state that; '... section 11 of the Bill of Rights shall not operate'. That last phrase would have been easy for Parliament to insert anywhere into the Mental Health (CAT) 1992.

Ultimately it seems that section 122B(3) of the MHA overrides the right in section 11 of the Bill of Rights by necessary implication. With the enactment of s.122B(3)MHA, the right in s. 11 of the Bill of Rights does not operate. Therefore the patient who is held under section 58 or 59 of the MHA may be subjected to such '...force as is reasonably necessary in the circumstances' - provided this force is being used to treat that patient for 'mental disorder'(s.2 MHA).

Why should patients be subjected to the discretionary use of force? Many have no control over their actions , many have no conscious volition. Even the Guidelines concede;'[S]uch persons, while being dealt with purely under the [Mental Health] Act, have not necessarily broken any rule of law'( Guidelines for Directors of Area Mental Health Services, April 2000 at p. 9). The application of force to a person is itself a form of violence, simply because force is being applied to them. Of course, the word 'force' is not defined in the Mental Health (CAT) Act 1992. However, the Guidelines to the Mental Health (CAT) Act 1992 April 2000 do state that if force has been used 'what type of force and by whom' should be recorded (at p.58, see also section 122B(4) MHA; a copy of the record of use of force should be attached to the patient's file, this copy may be sought under Rule 6 Health Information Privacy Code 1994 & s.14 NZBORA freedom to 'seek' and 'recieve' information).

How is the force to be applied , and what methods are allowable? Section 23(5) of the Bill of Rights Act 1990 should also be kept in mind, it states; 'Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person'.In the end, all subsection 122B(3) really states is the standard , or degree of force, that may be used on a patient, which is,'...force as is reasonably necessary in the circumstances'. If the subsection is breached, and excessive force is used, then that 'person' or those 'person[s]' may be held liable (see s. 62 of the Crimes Act 1961). Section 62 of the Crimes Act 1961 provides authority to penalise the use of excessive force. Yet the section prescribes no actual penalty itself for the use of excessive force. It has been said that'[e]xplicitness is necessarily compromised in offences that involve vague and open-ended concepts such as '...excessive...'( Simester & Brookbanks, Principles of Criminal Law (2nd Edn.) 2002 at p.30).

Another problematic word is 'reasonble'. What is 'reasonble'? The law never says. To some extent, the individual who uses force must, in advance, determine the law's standard for themselves and risk a Court disagreeing with them. ( Simester, supra, at p. 30). This reasoning surely also applies to the term '... force as is reasonably necessary in the circumstances'(in s.122B(3) MHA). '[W]here possible, these discretionary terms should be replaced by more concrete definitions of what counts as illegal, and what is legitimate'.(Simester, supra, at p. 30). Nevertheless, section 122B(3) of the Mental Health (CAT) Act 1992 confers a discretion to use force. The 'person[s]' authorised to use force in s.122B(3) have to use some form of guesswork. In hindsight, the question becomes; was the force used against the patient '...reasonably necessary in the circumstances'?

Each case will be confined to its particular facts, and therefore may be of limited precedent value ( See also section 114 of the Mental Health (CAT) Act 1992 – criminal liability for neglect or ill-treatment of proposed patients or patients). Subsection 122B(3) authorises force to be used apparently at any time to 'treat' a patient for 'mental disorder'. The entire section, that is, section 122B, was inserted into the 1992 Act (the princilpe Act) on 1 April 2000 by section 68 of the Mental Health (CAT) Amendment Act 1999 (1999 No 140). About three years after this the words '..section 58 or...' were inserted into s.122B(3) on 22 October 2003, by section 3 of the Mental Health (CAT) Amendment Act 2003 (2003 No 85).

Where did medical professionals derive their power to use force to treat a patient before section 122B (3) was inserted into the 1992 Act? It appears there was no statutory authority to use force to treat a patient in the 1992 Act before s.122B(3) came into force. Whatever the answer, 'person[s]', conveniently unlisted in s.122B(3), can now use '...force as is reasonably necessary in the circumstances'. However, this is likely to be read down and construed as meaning 'reasonable force'. Thus 'reasonable force' may be used at any time to treat a patient during the assessment periods (s.58 MHA), and during the currency of a compulsory treatment order (s.59 MHA). The use of force under s.122B(3) may be mitigated to some extent by the Guidelines which state ' Before force is used it is strongly recommended that the use of de - esculation skills should always be considered, and if clinially appropriate used'.( at p. 58). Note the words '...if clinically appropriate used', leaving the decision to medical professionals alone.

It is strange that with such a controversial subject , that is, the use of force in mental health services, the statutory authorisation to use force is hidden away in some obscure subsection at the back of the Mental Health(CAT)Act 1992 in s.122B(3). If the reader locates sections 58 and 59 of the MHA first - they will find nothing about use of force. The reader will instead have to traverse about 50 pages to the back of the Act and search for subsection 122B(3).Or, if the reader locates s.122B(3) first, then that subsection itself being referential, throws the reader back some 50 pages to sections 58 and 59. Why could not sections 58 and 59 themselves have been amended and an express power to use force inserted into them? This may have avoided any subsequent confusion.

A word of caution regarding interpretation of s.122B(3) of the MHA:

Throughout this blog it has been stated that medical staff have a discretion to use reasonable force, pursuant to s.122B(3) of the MHA, to treat a patient held under either section 58 or section 59. It has been further stated that this discretion is not limited to emergency situations. However, upon reflection, this interpretation may have been wrong. It may have been over- stating the matter. This is because a patient must first be detained, before reasonable force is used to treat them. Detention is always prior to treatment.

Arguably, an “emergency”(see s.122B(1) MHA) is first required before the power to use force to detain a patient (s.122B(2)(b)) and the discretion to use reasonable force to treat that patient (s.122B(3)) can be invoked.

That having been said: surely it would have been easy enough for Parliament to expressly state that the discretion found in s.122B(3) is restricted to “emergency” situations only. Why was this not stated in s.122B(1)? Still, there are sounds reasons for restricting s.122B(3) to emergencies, as this interpretation accords more with the usual bodily integrity arguments and also the Bill of Rights Act.





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